Federal District Court applying South Dakota law finds release was ineffective in stopping claims for injury that did not occur because of the risk the plaintiff was anticipating.

The plaintiff in this case signed a release to hunt, but was injured by an ATV waiting to hunt. As such the release did not apply.

Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

State: South Dakota

Plaintiff: Anthony Wimmer

Defendant: Top Gun Guide Service, Inc., John Does 1-5

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2019

Summary

A release must be written to cover all the risks your guests could suffer. Here the release covered hunting and did not cover being hit by an ATV when the plaintiff was not hunting. Write your release to inform your participants and to provide protection for you from all fronts.

Facts

This case arose from injuries that plaintiff Anthony Wimmer sustained while on a hunting trip hosted by defendant Top Gun near Aberdeen, South Dakota in April of 2015. Mr. Wimmer is a California resident and Top Gun is a Minnesota corporation. Id. On or about April 9, 2015, Mr. Wimmer arrived in Aberdeen, though he did not hunt on that day. At some point on April 9th, Mr. Wimmer signed a waiver purporting to release Top Gun from liability arising from the hunting trip.

The parties agree that in his deposition Mr. Wimmer testified that he read the release before signing it and that he did not disagree with anything contained therein. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity.

On April 10th, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. Shortly after having finished setting up the decoys, Mr. Wimmer was standing in the field where the hunt was to take place when he was struck from behind “by either an [all terrain vehicle (ATV)] or sled.” The sled was being towed behind the ATV. Id. The ATV was being operated by a Top Gun guide.

Analysis: making sense of the law based on these facts.

The plaintiff argued the normal arguments on why the release should fail. The main one was the release was written specific for the activity of and the risks created by hunting and fishing and at the time of the accident the plaintiff was doing neither of those things. Therefore, the release did not apply, his injuries were outside of the scope of the language of the release.

Plaintiff argues that he had no meaningful opportunity to negotiate the terms of the waiver and so it must be viewed as an “anticipatory release and contract of adhesion, which should be viewed with a skeptical and critical eye,” and any ambiguities should be construed against the drafter. Plaintiff argues that the waiver, by its terms, only applies to the limited activities of hunting and fishing. Plaintiff argues that his are not hunting injuries because, at the time of the accident, he had already finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Plaintiff urges that such activity should not be considered hunting.

The defendant argued the release was broad and covered the injury the plaintiff sustained and countered the plaintiff’s arguments.

Top Gun’s argument relies on the liability waiver being found to encompass the harm at issue in this case. Defendant then proceeds to argue that the waiver is valid and its enforcement would not contravene South Dakota’s public policy. Defendant argues that releases involving voluntary recreational activities have withstood attacks that they are contrary to South Dakota’s public policy many times before; only an attempted waiver of conduct rising to the level of willful negligence or intentional tort would contravene the state’s public policy. Because Mr. Wimmer does not allege willful negligence or any intentional torts, defendant argues that his claims must fail.

The court then looked at the law of South Dakota where the accident happened and, which law was to be applied, South Dakota law.

Under South Dakota law, a waiver of liability is contractual in nature and is governed by contract law. When interpreting a contract, “[t]he goal . . . is to see that the mutual intent of the parties is carried into effect.” Courts look to the language of the contract to determine the intent of the parties, and afford contractual terms their “plain and ordinary meaning,” “When the meaning of contractual language is plain and unambiguous, construction is not necessary” because the “intent of the parties can be derived from within the four corners of the contract.” (“When the words of a contract are clear and explicit and lead to no absurd consequences, the search for the parties’ common intent is at an end.”).

What most non-lawyers do not understand is a contract must be interrupted solely by the words in the contract. As lawyers say within the four corners of the document. Statements (parol evidence) said before or after the signing of the contract are inadmissible to interpret the contract. The exception to this rule is if the contract is determined by the court to be ambiguous, then evidence outside of the terms of the agreement can be introduced to explain the language of the contract. But only to explain the ambiguous language of the contract.

When a contract is found to be ambiguous, however, “parol evidence is admissible to explain the contract but inadmissible to vary or add terms to the contract.” A contract is not rendered ambiguous merely because the parties now disagree as to their intent at the time of contracting. “Instead, ‘a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'”

The court found that the release was not ambiguous so no other evidence could be introduced to explain the meaning of the release.

The release at issue in the instant case is not ambiguous. Although it must be interpreted and read in a common sense manner. The release, by its terms, covers “all claims, demands, or causes of action, which are in any way connected with [plaintiffs] participation in this activity or [plaintiff’s] use of [Top Gun] equipment…”

The plaintiff and the defendant both argued the issues as they needed. The plaintiff stated he was standing around the, and the defendant argued the plaintiff was hunting. However, the court found the plaintiff was not hunting by law. “As a matter of law, plaintiff could not have legally been pursuing waterfowl because the accident happened long before legal shooting time.”

Under South Dakota law, hunting cannot begin until thirty minutes before sunrise. Since the accident happened several hours before sunrise, the plaintiff was not hunting.

This accident could not, as a matter of law, have been a part of legal hunting. In South Dakota, a hunter may not shoot waterfowl until one half hour before sunrise. At the time of the accident, all preparations for hunting had been completed. The parties were in a waiting period. Instead, plaintiff was struck by a motor vehicle. The fact that plaintiff is claimed to be hunting at the time he was struck by the ATV is irrelevant because being struck by an ATV is not a harm arising out of hunting, especially long before sunrise.

Therefore, the release was not written to cover the accident that occurred to the plaintiff.

The court also added that the release did not cover motor vehicle accidents, which is what occurred to the plaintiff. (Any accident that is caused by something with an engine and tires, the courts usually interpret that as a automobile accident and apply automobile law, on or off road.)

The court then looked at releases and how they are interpreted with respect to high-risk activities under South Dakota law.

First, the more inherently dangerous or risky the recreational activity, the more likely that an anticipatory release will be held valid. That is, individuals who engage in activities like mountain climbing, race car driving, parachute jumping, and the like, are more likely to be held to have an understanding of the risky nature of their chosen activity.

Second, releases are deemed more acceptable when they are written on a separate sheet of paper. Id. It is the first line of reasoning that is most relevant to the instant analysis.

The court stated that if you undertake a high-risk activity you cannot sue for your injuries.

The first line of reasoning recognizes that individuals who voluntarily engage in a particularly dangerous activity for recreational purposes must accept a certain amount of risk that is inherent in said activity. That is, when an individual chooses to go skydiving, signs a release with a vendor providing such services, and is injured while hurtling to the earth, he cannot then sue in contravention of that release. Hunting is likewise a dangerous activity; the hunter voluntarily exposes himself to all the dangers of the firearms enthusiast as well as those of the outdoorsman. It is agreed that the release in this case covers liability arising out plaintiff’s participation in the activity of hunting. However, plaintiff’s participation in the hunt did not cause his injury.

Summing the issues up, the court made the statement that in South Dakota, the Supreme Court looked at the validity of the release as it relates to the activity the release was supposed to cover.

Each case the Supreme Court of South Dakota has considered relating to the application of a release from liability has involved harm that arose out of the activity for which liability was waived.

However, here the plaintiff was not undertaking a high-risk recreational activity. He was standing in a field.

In the instant case, plaintiff’s injury did not arise from his participation in the hunt. He was not accidentally shot by a fellow hunter; he did not strain his back while placing a decoy, nor did he twist his ankle while standing around waiting to be told what to do next. Instead, plaintiff was struck from behind by a motor vehicle at a time before legal hunting could commence, something separate and apart from his participation in the hunt.

The release was signed so the plaintiff could hunt. He was not injured hunting, and the release was not written in a way to cover the risks the plaintiff encountered standing in a field.

The release was thrown out by the court and the plaintiff was allowed to continue his lawsuit.

So Now What?

Too many releases are written to cover the risks of the specific activity, hunting, climbing, rafting, etc. Yet accidents occur in the parking lot, on the way to the activity and just standing around waiting for kayaks to be unloaded, belays to be set up or the guides to get organized.

Make sure your release is broad enough to cover all the risks your clients will encounter during the activity.

At the same time, don’t let an idiot drive an ATV and if people are going to be standing around in the dark, put a bicycle light on them so you can find them.

What do you think? Leave a comment.

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Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

United States District Court for the District of South Dakota, Northern Division

October 26, 2019, Decided; October 28, 2019, Filed

1:18-CV-01001-CBK

Reporter

421 F. Supp. 3d 849 *; 2019 U.S. Dist. LEXIS 185888 **; 2019 WL 5558308

ANTHONY WIMMER, Plaintiff, v. TOP GUN GUIDE SERVICE, INC., JOHN DOES 1-5, Defendants.

Counsel:  [**1] For Plaintiff Anthony Wimmer: Michael W. Strain, LEAD ATTORNEY, Strain Morman Law Firm, Sturgis, SD; Scott G. Hoy, Hoy Trial Lawyers, Prof. L.L.C., Sioux Falls, SD.

For Defendant Top Gun Guide Service, Inc.: Gordon H. Hansmeier, LEAD ATTORNEY, Rajkowski Hansmeier Ltd., St. Cloud, MN.

Judges: CHARLES B. KORNMANN, United States District Judge.

Opinion by: CHARLES B. KORNMANN

Opinion

 [*851]  MEMORANDUM AND ORDER

This matter is before the Court on defendant Top Gun Guide Service, Inc.’s (“Top Gun”) motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Doc. 14.

BACKGROUND

This case arose from injuries that plaintiff Anthony Wimmer sustained while on a hunting trip hosted by defendant Top Gun near Aberdeen, South Dakota in April of 2015. Doc. 1 at 2; Doc. 6 at 1. Mr. Wimmer is a California resident and Top Gun is a Minnesota corporation. Id. On or about April 9, 2015, Mr. Wimmer arrived in Aberdeen, though he did not hunt on that day. Doc. 15 at 5; Doc. 22 at 1. At some point on April 9th, Mr. Wimmer signed a waiver purporting to release Top Gun from liability arising from the hunting trip. Doc. 15 at 5; Doc. 22 at 2. The release form provided, in pertinent part:

I acknowledge that hunting and fishing entails known and unanticipated risks which [**2]  could result in physical or emotional injury, paralysis, death, or damage to myself; . . . I understand that such risks are essential qualities of the activity. The risks include, among other things: Accidental shootings, or falls to myself . . . trip or fall accidents to myself . . . medical problems from preexisting conditions . . . to myself . . . I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks to others and myself; I fully understand that hunting and fishing is a dangerous activity. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless [Top Gun] from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of [Top Gun] equipment or facilities, including any such claims which allege negligent acts or omissions of [Top gun].

Doc. 17, Ex. D. The parties agree that in his deposition Mr. Wimmer testified that he read the release before signing it and that he did not disagree with anything contained therein. Doc. 15 at 6; Doc. 22 [**3]  at 2-4. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity. Anthony Wimmer Dep. at 41:7-9.

On April 10th, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. Doc. 15 at 7; Doc. 22 at 5. Shortly after having finished setting up the decoys, Mr. Wimmer was standing in the field where the hunt was to take place when he was struck from behind “by either an [all terrain vehicle (ATV)] or sled.” Id. The sled was being towed behind the ATV. Id. The ATV was being operated by a Top Gun guide.

Id. The accident  [*852]  occurred between 3:30 a.m. — 4:30 a.m. Doc. 15 at 4. Mr. Wimmer alleges that he sustained severe injuries. Doc. 1 at 2. •

Defendant argues that “[b]ecause Mr. Wimmer knowingly, voluntarily, and fairly signed a release that unambiguously covers the injuries that he suffered and that does not contravene public policy,” his claims should be dismissed with prejudice. Doc. 15 at 8. Defendant contends that the liability waiver Mr. Wimmer signed before participating in the hunt releases Top Gun from all liability in relation to the ATV accident. Id. In short, Top Gun’s argument relies on the liability waiver being found to encompass [**4]  the harm at issue in this case. Defendant then proceeds to argue that the waiver is valid and its enforcement would not contravene South Dakota’s public policy. Id. at 9-11. Defendant argues that releases involving voluntary recreational activities have withstood attacks that they are contrary to South Dakota’s public policy many times before; only an attempted waiver of conduct rising to the level of willful negligence or intentional tort would contravene the state’s public policy. Id. at 11. Because Mr. Wimmer does not allege willful negligence or any intentional torts, defendant argues that his claims must fail. Id.

Plaintiff responds that the harm that befell him was outside the scope of the waiver. Plaintiff argues that he had no meaningful opportunity to negotiate the terms of the waiver and so it must be viewed as an “anticipatory release and contract of adhesion, which should be viewed with a skeptical and critical eye,” and any ambiguities should be construed against the drafter. Doc. 20 at 5. Plaintiff argues that the waiver, by its terms, only applies to the limited activities of hunting and fishing. Id. Plaintiff argues that his are not hunting injuries because, at the time of the accident, [**5]  he had already finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Id. at 6. Plaintiff urges that such activity should not be considered hunting. Id.

Plaintiff next argues that even if he was hunting at the time of the accident, the release is contrary to South Dakota law as it purports to waive liability for acts of gross negligence and, so, enforcing it would be against South Dakota’s public policy. Id. at 7. Plaintiff also argues that provisions of South Dakota law related to motor vehicle liability preclude enforcement of the waiver as against the state’s public policy. Id. at 9.

Defendant replies that plaintiff’s reading of the waiver is too narrow, the terms of the waiver are broad enough to cover any injury “in any way connected with” the activity of hunting. Doc. 23 at 3. Thus, defendant contends, the terms of the waiver apply to plaintiff’s injury whether or not he was actively shooting or pursuing birds at the time of the injury. Id. Defendant further contends that setting up decoys is a part of pursuing birds, which is within the definition of hunting adopted in South Dakota’s laws. Id. at 4.

Defendant also argues that enforcing the release against [**6]  plaintiff would not violate South Dakota public policy because plaintiff only claims ordinary negligence, liability for which may be waived. Id. at 5. Defendant argues that plaintiff has produced no evidence that defendant’s agent operated the ATV in a reckless or willfully negligent manner. Id. at 6-7. Defendant argues that there was no disparity in bargaining power that would warrant this waiver being viewed as a contract of adhesion. Id. at 7. Finally, defendant argues that the waiver does not allow Top Gun to circumvent South Dakota’s motor vehicle insurance laws, as plaintiff has claimed, and enforcing the waiver would not be  [*853]  contrary to the public policy those laws espouse. Id. at 8.

LEGAL STANDARD

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Knutson v. Schwan’s Home Service, Inc., 711 F.3d 911, 913 (8th Cir. 2013). The United States Supreme Court has held that:

The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material [**7]  fact, since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (internal quotations omitted).

“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. That is, to make summary judgment inappropriate, there must be a factual dispute concerning facts the existence or nonexistence of which would “be outcome determinative under [the] prevailing [substantive] law.” Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1034 (8th Cir. 2005).

Thus, in accordance with Rule 56(c), the party seeking summary judgment must first identify grounds demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Upon such a showing, the burden shifts to the non-movant to present affirmative evidence, beyond the pleadings, showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To meet its burden, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, the non-movant must be able to “show there [**8]  is sufficient evidence to support a jury verdict in [its] favor.” Nat’l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999). After this exercise, “we view the facts and the inferences to be drawn from them in the light most favorable to the nonmoving party.” Northport Health Servs. of Arkansas, LLC v. Posey, 930 F.3d 1027, 1030 (8th Cir. 2019).

DISCUSSION

“Because this is a diversity action, we apply the substantive law of the forum state.” Vandewarker v. Cont’l Res., Inc., 917 F.3d 626, 629 (8th Cir. 2019), reh’g denied (Apr. 10, 2019) (citing
N. Oil & Gas, Inc. v. Moen, 808 F.3d 373, 376 (8th Cir. 2015). Under South Dakota law, a waiver of liability is contractual in nature and is governed by contract law. Johnson v. Rapid City Softball Ass’n, 514 N.W.2d 693, 697 (S.D. 1994). When interpreting a contract, “[t]he goal . . . is to see that the mutual intent of the parties is carried into effect.” Nelson v. Schellpfeffer, 2003 SD 7, 656 N.W.2d 740, 743 (S.D. 2003). Courts look to the language of the contract to determine the intent of the parties, Roseth v. Roseth, 2013 SD 27, 829 N.W.2d 136, 142 (S.D. 2013), and afford contractual terms their “plain and ordinary meaning,” Bunkers v. Jacobson, 2002 SD 135, 653 N.W.2d 732, 738 (S.D. 2002) (citation  [*854]  and quotation marks omitted). “When the meaning of contractual language is plain and unambiguous, construction is not necessary” because the “intent of the parties can be derived from within the four corners of the contract.” Roseth, 829 N.W.2d at 142 (citation omitted); see also
Nelson, 656 N.W.2d at 743 (“When the words of a contract are clear and explicit and lead to no absurd consequences, the search for the parties’ common intent is at an end.”).

When a contract is found to be ambiguous, however, “parol evidence [**9]  is admissible to explain the contract but inadmissible to vary or add terms to the contract.” Couch v. Lyon, No. CIV. 12-3029-RAL, 2013 U.S. Dist. LEXIS 160770, 2013 WL 5942607, at *4 (D.S.D. Nov. 5, 2013)
(citing
Roseth, 829 N.W.2d at 142.). A contract is not rendered ambiguous merely because the parties now disagree as to their intent at the time of contracting. Roseth, 829 N.W.2d at 142. “Instead, ‘a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'” Id.
(quoting
Vander Heide v. Boke Ranch, Inc., 2007 SD 69, 736 N.W.2d 824, 836 (S.D. 2007)).

The release at issue in the instant case is not ambiguous. Although it must be interpreted and read in a common sense manner. The release, by its terms, covers “all claims, demands, or causes of action, which are in any way connected with [plaintiffs] participation in this activity or [plaintiff’s] use of [Top Gun] equipment…” Doc. 17, Ex. D. Furthermore, plaintiff has not challenged the validity of the release or any of its terms; thus, the Court will apply the release and construe it by its terms, using common sense methods.

Defendant argues that, at the time of injury, plaintiff was in the process of pursuing birds, that is, plaintiff was on a hunting trip, in a hunting field regardless of whether [**10]  he was actively shooting or preparing to shoot at the time. Because plaintiff was pursuing birds at the time he was injured, defendant argues that his injury is “connected with” the activity of hunting. Plaintiff argues that he was done setting up decoys at the time he was injured and, as a result, he was not pursuing birds at the time of the harm—he was merely a man standing in a field. As a matter of law, plaintiff could not have legally been pursuing waterfowl because the accident happened long before legal shooting time. Thus, both parties focused their arguments on what the plaintiff was doing at the time of the accident.

This accident could not, as a matter of law, have been a part of legal hunting. In South Dakota, a hunter may not shoot waterfowl until one half hour before sunrise. At the time of the accident, all preparations for hunting had been completed. The parties were in a waiting period. Instead, plaintiff was struck by a motor vehicle. The fact that plaintiff is claimed to be hunting at the time he was struck by the ATV is irrelevant because being struck by an ATV is not a harm arising out of hunting, especially long before sunrise. In addition, the release makes no [**11]  mention of a motor vehicle accident.

The language in the release, “in any way connected with [plaintiffs] participation in this activity,” is so broad that it necessitates an exercise in line drawing. At some point, it would be absurd to find an activity that, while distantly connected with plaintiff’s participation in the hunt, is covered by a waiver of liability for a hunting trip. For example, if plaintiff had been injured when the car in which he was being transported from the hotel to the hunting grounds was involved in an accident, would any negligence from that activity be covered  [*855]  by the release? It is certainly an activity in some way connected with plaintiff’s participation in the hunt, as the party was on the way to the hunting grounds. But to say that a waiver of liability for a hunting trip covered negligence related to a car trip from the hotel to the hunting grounds would be to stretch the bounds of what general, catch-all provisions of a contract can accomplish.

That is not to say that general contract provisions are not enforceable. Indeed, South Dakota case law has upheld the efficacy of broad waivers of liability. There are generally two lines of reasoning that permeate [**12]  South Dakota case law concerning releases from liability.

First, the more inherently dangerous or risky the recreational activity, the more likely that an anticipatory release will be held valid. That is, individuals who engage in activities like mountain climbing, race car driving, parachute jumping, and the like, are more likely to be held to have an understanding of the risky nature of their chosen activity.

Johnson, 514 N.W.2d at 700 (Wuest, J. concurring) (internal citations omitted). Second, releases are deemed more acceptable when they are written on a separate sheet of paper. Id. It is the first line of reasoning that is most relevant to the instant analysis. 1

The first line of reasoning recognizes that individuals who voluntarily engage in a particularly dangerous activity for recreational purposes must accept a certain amount of risk that is inherent in said activity. That is, when an individual chooses to go skydiving, signs a release with a vendor providing such services, and is injured while hurtling to the earth, he cannot then sue in contravention of that release. Hunting is likewise a dangerous activity; the hunter voluntarily exposes himself to all the dangers of the firearms enthusiast as well [**13]  as those of the outdoorsman. It is agreed that the release in this case covers liability arising out plaintiff’s participation in the activity of hunting. However, plaintiff’s participation in the hunt did not cause his injury. Defendant asserts that setting up decoys is a means of pursuing birds—hunting—but, while that may be true, neither the decoys themselves, nor any part of the process of placing them, caused plaintiff’s injuries.

Each case the Supreme Court of South Dakota has considered relating to the application of a release from liability has involved harm that arose out of the activity for which liability was waived. In Johnson, the signed release concerned the plaintiff’s participation in a softball league. She subsequently “injured her right ankle sliding into third base during a softball game.” Johnson, 514 N.W.2d at 694. In Holzer, the signed release concerned the plaintiff’s presence in the “pit” area of a race track; he was subsequently hit by a tire that flew off one of the racecars and over protective barricades. Holzer, 610 N.W.2d at 789-91. In Lee v. Beauchene, the signed release covered the plaintiff’s participation in an automobile race; subsequently his “car struck a hole [in the track] that he estimated was one [**14]  to one and one-half feet deep. The car flipped.” Lee v. Beauchene, 337 N.W.2d 827, 828 (S.D. 1983). In each of the foregoing cases, the plaintiff’s injury was caused by his or her participation in the activity for which liability was waived. That is, the injury arose from the activity itself. If that were not the case, however, those cases might have turned out quite differently. For instance, if the plaintiff in Holzer had been accidentally shot while working in the pit area, the question of whether he had waived the track’s liability  [*856]  for such harm would have been a different question.

In the instant case, plaintiff’s injury did not arise from his participation in the hunt. He was not accidentally shot by a fellow hunter, he did not strain his back while placing a decoy, nor did he twist his ankle while standing around waiting to be told what to do next. Instead, plaintiff was struck from behind by a motor vehicle at a time before legal hunting could commence, something separate and apart from his participation in the hunt. Thus, while liability was effectively waived for injury arising out of the activities of hunting or fishing, there was no release for the harm that befell plaintiff. The ATV was being driven by Top Gun staff, [**15]  presumably to transport the decoys from the cars to the hunting grounds. At some point in that process, the employee struck plaintiff with the ATV. While such work is in some way connected with the hunt, it is not connected with plaintiff’s participation in the hunt in any way beyond plaintiff’s mere presence on the hunting grounds. When plaintiff signed a release for harm arising out of hunting or fishing, he was simply not there giving up his right to sue for harm arising out of a motor vehicle accident, or any other activity when he could not have been legally hunting.

As the Court finds that the release does not apply to the harm at issue in this case, the parties’ arguments concerning South Dakota’s insurance law and public policy concerning releases of liability in claims for gross negligence, respectively, will not be addressed.

IT IS ORDERED that defendant Top Gun’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, Doc. 14, is hereby DENIED.

DATED this 26th day of October, 2019.

BY THE COURT:

/s/ CHARLES B. B. KORNMANN

CHARLES B. B. KORNMANN

United States District Judge


Ruts left in slope by snowmaking ATV did not rise to the level of recklessness or gross negligence in the Pennsylvania skiing lawsuit.

Great review of gross negligence and recklessness law under Pennsylvania law in this decision.

Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Patrick Kibler and Kathryn Kibler, Husband and Wife

Defendant: Blue Knob Recreation, Inc., /d/b/a Blue Knob All Seasons Resort, and Blue Knob Resort, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release

Holding: For Defendant

Year: 2017

Summary

Ruts left on the slope are an inherent risk of skiing and do not rise to gross negligence in Pennsylvania. Plaintiff assumed the risk of his injuries both under the Pennsylvania Skier Safety Act and the release he signed for his pass.

Facts

On March 21, 2014, [appellant] applied for a season ski pass for the 2014-2015 ski season at Blue Knob Ski Resort. [Appellant] signed and dated the season pass/application agreement, which contained [184 A.3d 977] information and guidelines about the Blue Knob season pass.

On December 21, 2014 at 9:00 a.m., [appellant] arrived at Blue Knob to ski with friends. Prior to arriving at the resort, [appellant] learned that five slopes were open to ski. [Appellant] eventually would ski on two of these five open slopes. After skiing down a slope identified as “Lower Mambo,” [appellant] stopped to look for his skiing companions, who were snowboarding on another slope. In an attempt to rejoin them without walking back up the slope, [appellant] intended to ski toward the middle of “Lower Mambo Valley” in order to reach a ski lift. While traversing this area, [appellant] ran over “trenches” he avers were four-to-six inches deep and six-to-eight inches wide, which extended halfway across the ski slope. Defendants’ employees identified the trenches as being caused by an all-terrain-vehicle operated by a resort employee. [Appellant] fell when encountering these trenches, causing him to fracture his left tibia and fibula.

Plaintiff sued for his injuries, and the trial court dismissed his claim on a motion for summary judgment. This was the plaintiff’s appeal.

Analysis: making sense of the law based on these facts.

The court first looked at the issues in this appeal from the standpoint of the Pennsylvania Skier Safety Act. The act states that skiers voluntarily assume the risk of the sport. Unlike most other skier safety acts, the Pennsylvania Skier Safety Act does not list the risks the skier assumes. That is left up to the court in each case. This leads to more litigation as each plaintiff is free to argue that the risk that caused his accident is not an inherent risk of skiing and not covered under the Pennsylvania Skier Safety Act.

When reviewing whether a risk is inherent and part of the sport of skiing the Pennsylvania Supreme Court created standards to assist courts in making that decision.

First, this Court must determine whether [appellant] was engaged in the sport of downhill skiing at the time of [his] injury. If that answer is affirmative, we must then determine whether the risk [encountered] is one of the “inherent risks” of downhill skiing, which [appellant] must be deemed to have assumed under the Act. If so, then summary judgment was appropriate because, as a matter of law, [appellant] cannot recover for [his] injuries.

Inherent risks of skiing in Pennsylvania are those “that are ‘common, frequent, or expected’ when one is engaged in a dangerous activity, and against which the defendant owes no duty to protect.”

The court found the plaintiff was engaged in downhill skiing. Downhill skiing has a broad definition under Pennsylvania law.

Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.

To determine if wheel ruts in the slope were a risk in skiing the court turned to a New York decision.

Appellate Division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants’ motion for summary judgment.

However, the court never found or determined if the Pennsylvania Skier Safety Act prevented the claim. The court then turned to the release the plaintiff signed when he paid for his season pass.

The plaintiff argued the release should be void.

Specifically, appellant avers that the release in question is “not a valid exculpatory release” due to the fact that the release is ambiguous, the release is “without print of a size and boldness that draws the attention of an ordinary person,” and there is no evidence that appellants actually read the release.

The court then looked for the requirements under Pennsylvania law for a release to be valid.

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. [[O]ur supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Since the release was between the ski area and a skier, it was a private contract and did not contravene public policy. The court then looked at whether the release was enforceable. That standard required the court to:

…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.”

To be valid in Pennsylvania a release must spell out with particularity the intentions of the parties.

…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.

The plaintiff argued the release should be void because:

Appellants first aver that the language of the release was ambiguous. Specifically, appellants allege that the release failed to “clearly and unequivocally intend for the defendant[s] to be relieved from liability, using language understandable to an ordinary and knowledgeable person so participants know what they have contracted away.” Appellants then allege that the release failed include any reference to the risk encountered by appellant. Appellants specifically argue that “the risk [appellant] encountered, i.e. , deep and wide frozen trenches in the middle of a beginner’s slope, are not stated because it is nonsensical to contend such a serious hazard is inherent to the sport.

The plaintiff then argued the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person.” The court referred to Pennsylvania Uniform Code, which set froth requirements for contracts and defines what a conspicuous term is:

(i) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size.

(ii) Language in the body of a record or display in larger type than the surrounding text, in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

The court found the release valid because exculpatory language was preceded by a heading that was written in all caps equal to the size of the text in the exculpatory paragraph. The heading also contained two exclamation points to draw attention to it.

The plaintiff then argued he did not read the release. (That’s his problem no one else’s!) “Our cases provide that “failure to read an agreement before signing it does not render the agreement either invalid or unenforceable.”

The court then reviewed the gross negligence, and reckless conduct claims the plaintiff made. A claim that the actions of the defendant were reckless would not be barred by a release. The court then reviewed the definition of gross negligence.

The general consensus finds [that] gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” (relying in part on bailment cases and in part on the definition of “gross negligence” as applied to the [Mental Health Procedures Act[9] ] ). Gross negligence may be deemed to be a lack of slight diligence or care compromising a conscious, voluntary act or omission in “reckless disregard” of a legal duty and the consequences to another party. While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.

The court then identified the definition of recklessness.

Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.

Then the court reviewed recklessness as defined by the Restatement (Second) of Torts:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:

Reckless misconduct differs from negligence in several important particulars. If differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man…. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Finally, the court summed up the definitions as:

Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, and indifference whether or not wrong is done, and an indifference to the rights of others

Since the plaintiff could not prove any intentional conduct on the part of the defendant, the actions of the defendant were not reckless or gross negligence.

[Appellants] aver that Defendants’ snow-making crew created the “trenches” by operating an all-terrain-vehicle across part of the ski-slope, rather than entirely along the sides of the slopes.[Footnote 7] While apparently against normal maintenance policy and procedures and arguably negligent, we do not believe these actions amount to gross negligence or recklessness. Defendants’ employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that— although possibly dangerous— was not inherently unexpected upon a ski slope. We view such conduct to be a matter of “… mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” rather than recklessness.

The summary judgement of the trial court dismissing the plaintiff’s claims was upheld.

So Now What?

Anytime you do anything outside of the scope of operations of your competitors you set yourself up for a claim. Using ATV’s on the ski slope rather than a snow machine created that opportunity here for the plaintiff.

The ATV was a vehicle that could be used by the defendant year round and probably saved them money. However, the amount of time their employees spent defendant this claim and responding to the allegations I would guess wiped out that savings.

If you insist and being different, which is necessary for any industry to grow and change, justify the why with thought and reasons that are more than money. In this case, simply grooming after the ATV had passed would have solved the problem.

What do you think? Leave a comment.

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Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)

Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)

184 A.3d 974

Patrick Kibler and Kathryn Kibler, Husband and Wife, Appellants

v.

Blue Knob Recreation, Inc., a Pennsylvania Corporation, t/d/b/a Blue Knob All Seasons Resort, and Blue Knob Resort, Inc., a Pennsylvania Corporation

No. 903 WDA 2017

Superior Court of Pennsylvania

April 19, 2018

Argued November 29, 2017

[184 A.3d 975] [Copyrighted Material Omitted]

[184 A.3d 976]

Appeal from the Order, May 24, 2017, in the Court of Common Pleas of Bedford County, Civil Division at No. 2015-183. TRAVIS W. LIVENGOOD, J.

Douglas V. Stoehr, Altoona, for appellants.

Anthony W. Hinkle, Blue Bell, for appellees.

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.

OPINION

FORD ELLIOTT, P.J.E.

Patrick and Kathryn Kibler (collectively “appellants”[1] ) appeal from the May 24, 2017 order of the Court of Common Pleas of Bedford County granting Blue Knob Recreation, Inc. and Blue Knob Resort, Inc.’s (hereinafter, collectively “defendants”) motion for summary judgment. After careful review, we affirm.

The trial court provided the following synopsis of the facts:

On March 21, 2014, [appellant] applied for a season ski pass for the 2014-2015 ski season at Blue Knob Ski Resort. [Appellant] signed and dated the season pass/application agreement, which contained [184 A.3d 977] information and guidelines about the Blue Knob season pass. The bottom half of said document contains the following exculpatory language:

PLEASE READ THE FOLLOWING

BEFORE SIGNING!!

Snowboarding, skiing and other snow related activities, like many other sports, contain inherent risks including, but not limited to, the risk of personal injury, death or property damage, which may be caused by: variation in terrain or weather conditions, surface or subsurface, snow, ice, bare spots, thin cover, moguls, ruts, bumps, forest growth, debris, other persons using the facilities, branches, trees, roots, stumps, rocks, and other natural or man made objects that are incidental to the provision or maintenance of the facility. For the use of Blue Knob Ski Area, the holder assumes all risks of injury and releases Blue Knob Recreation from all liability THEREFORE: Not withstanding the foregoing, if I sue Blue Knob Recreation ET AL I agree that I will only sue it, whether on my own behalf or on behalf of a family member, in the Court of Common Pleas of Bedford County or in the United States District Court for the District of Pittsburgh, Pennsylvania and further agree that any and all disputes which might arise between Blue Knob Recreation ET AL and myself shall be litigated exclusively in one of said courts.

See Blue Knob All Seasons Resort Information/Guidelines.

On December 21, 2014 at 9:00 a.m., [appellant] arrived at Blue Knob to ski with friends. Prior to arriving at the resort, [appellant] learned that five slopes were open to ski. [Appellant] eventually would ski on two of these five open slopes. After skiing down a slope identified as “Lower Mambo,” [appellant] stopped to look for his skiing companions, who were snowboarding on another slope. In an attempt to rejoin them without walking back up the slope, [appellant] intended to ski toward the middle of “Lower Mambo Valley” in order to reach a ski lift. While traversing this area, [appellant] ran over “trenches” he avers were four-to-six inches deep and six-to-eight inches wide, which extended halfway across the ski slope. Defendants’ employees identified the trenches as being caused by an all-terrain-vehicle operated by a resort employee. [Appellant] fell when encountering these trenches, causing him to fracture his left tibia and fibula.

Trial court opinion, 5/23/17 at 2-3.

On February 15, 2015, appellants filed a civil complaint with the trial court sounding in negligence. Following discovery, defendants filed a motion for summary judgment with an accompanying memorandum of law on January 23, 2017. Appellants filed a motion for summary judgment on March 17, 2017. Oral arguments were held before the trial court on April 18, 2017. On May 24, 2017, the trial court granted defendants’ motion for summary judgment, dismissing appellants’ complaint with prejudice, and denied appellants’ motion for summary judgment.

On June 16, 2017, appellants filed a timely notice of appeal with this court. The trial court ordered appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellants complied on July 18, 2017. The trial court filed an opinion on August 10, 2017, pursuant to Pa.R.A.P. 1925(a) in which it incorporated the content of its May 24, 2017 order and opinion granting defendants’ motion for summary judgment.

Appellants raise the following issues for our review: [184 A.3d 978] A. Was the hazard encountered by [appellant] inherent to the dangers of downhill skiing, when [defendants’] Director of Maintenance testified that the hazard was out of the ordinary, not common, and [appellant] should not have expected to encounter the hazard?

B. Is the Blue Knob All Seasons Resort 2014-2015 Season Pass Holder Information/Guidelines document a valid exculpatory release, where the top half of the document only discusses the requirements to be a season pass holder, and the lower half is ambiguous, the word “releases” is located 75% down the page, lacks conspicuity, without print of a size and boldness that draws the attention of an ordinary person, and where no evidence exists that [appellant] read this document?

C. Is a claim for injuries caused by the grossly negligent and/or reckless acts of a ski resort barred by an alleged exculpatory sentence in Blue Knob’s season pass?

D. Did [appellant] voluntarily assume the risk of injury when he encountered a hazard at [defendants’] resort for which he was unaware, and for which [defendants’] Director of Maintenance testified that [appellant] had no reason to anticipate or know of the hazard’s existence? Appellant’s brief at 4-5.[2]

In reviewing an appeal from the trial court’s granting of a motion for summary judgment, we are governed by the following standard of review:

[O]ur standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Our scope of review is plenary. In reviewing a trial court’s grant of summary judgment, we apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.

* * *

Upon appellate review, we are not bound by the trial court’s conclusions of law, but may reach our own conclusions.

Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798 (Pa.Super. 2012) (internal citations omitted).

Rule of Civil Procedure 1035 governs motions for summary judgment and provides, in relevant part, as follows:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of [184 A.3d 979] action or defense which could be established by additional discovery or expert report, or (2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2. This Court has explained the application of this rule as follows:

Motions for summary judgment necessarily and directly implicate the plaintiff’s proof of the elements of a cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Petrina, 46 A.3d at 798. Criswell v. Atlantic Richfield Co., 115 A.3d 906, 909-910 (Pa.Super. 2015).

Voluntary Assumption of the Risk

Appellants’ first and fourth issues on appeal address the voluntary assumption of the risk associated with downhill skiing. The General Assembly directly addressed this issue when it passed the Pennsylvania Skier’s Responsibility Act (hereinafter, “the Act”). The Act provides, in relevant part,

(c) Downhill skiing—

(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.

(2) The doctrine of voluntary assumption of the risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).[3]

42 Pa.C.S.A. § 7102(c).

In light of the Act, our supreme court established the following standard when reviewing grants of summary judgment in cases involving downhill skiing:

First, this Court must determine whether [appellant] was engaged in the sport of downhill skiing at the time of [his] injury. If that answer is affirmative, we must then determine whether the risk [encountered] is one of the “inherent risks” of downhill skiing, which [appellant] must be deemed to have assumed under the Act. If so, then summary [184 A.3d 980] judgment was appropriate because, as a matter of law, [appellant] cannot recover for [his] injuries.

Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (2000). In the context of downhill skiing, our supreme court stated that both common law assumption of the risk doctrine and the court’s decision in Hughes “direct that inherent risks are those that are ‘common, frequent, or expected’ when one is engaged in a dangerous activity, and against which the defendant owes no duty to protect.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1187 n.14 (2010).

In the instant appeal, it is beyond dispute that appellant was engaged in the sport of downhill skiing at the time of his injury. Indeed, as noted by the Hughes court,

Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.

Hughes, 762 A.2d at 344. Therefore, our paramount inquiry is whether encountering wheel ruts on a ski slope created by an ATV operated by an employee of defendants is an inherent risk to downhill skiing.

Appellants make the argument that operating an ATV up the middle of a ski slope is not an inherent aspect of the sport, and should therefore not be considered an inherent risk as contemplated by the Act. (See appellants’ brief at 32.) Appellants specifically cite the deposition testimony of Craig Taylor, defendants’ director of maintenance, in which Mr. Taylor stated that it would not be common or expected by a skier to encounter wheel ruts made by an ATV on the ski slope. (See notes of testimony, 10/21/15 at 28.) Defendants aver that the cause of the alleged condition is not relevant to whether the condition itself, in this case wheel ruts left by operating an ATV up the middle of a ski slope, constitutes an inherent risk associated with downhill skiing.

As noted by the Chepkevich court, “Pennsylvania’s Act is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing,” especially when compared to other states in which skiing constitutes a “significant industry.” Chepkevich, 2 A.3d at 1188 n.15. Of the states referenced by the Chepkevich court, the most instructive is New York.

In Schorpp v. Oak Mountain, LLC, 143 A.D.3d 1136, 39 N.Y.S.3d 296 (N.Y.App.Div. 2016), the New York Supreme Court, Appellate Division[4] reversed the trial court’s denial of summary judgment in a negligence cause of action. Id. at 1137, 39 N.Y.S.3d 296. The plaintiff in this case “skied into a ‘depression’ that was filled with snow. The skis got caught in the depression causing [the plaintiff] to flip over and fall out of his skis.” Id. The appellate court held that under New York’s assumption of the risk doctrine as it pertains to downhill skiing, “an individual ‘assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain.’ ” Id. , quoting Ruepp v. West Experience, 272 A.D.2d 673, 674, 706 N.Y.S.2d 787 (N.Y.App.Div. 2000) (emphasis added). Unlike its Pennsylvania counterpart, the [184 A.3d 981] New York State Legislature specifically identified ruts as an inherent risk of downhill skiing. N.Y. General Obligations Law § 18-101.

Given that our cases do not directly address an injury incurred while engaged in downhill skiing caused by wheel ruts in the terrain on the slope, we find the New York statute and case law to be the most instructive in the instant appeal. Moreover, the language of the release signed by appellant, which we further discuss infra , is nearly identical to the language of the New York statute.[5] We agree with the holding of the Appellate Division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants’ motion for summary judgment.

Validity of Release[6]

Appellants’ second issue pertains to the release appellant signed when he purchased his season pass. Specifically, appellant avers that the release in question is “not a valid exculpatory release” due to the fact that the release is ambiguous, the release is “without print of a size and boldness that draws the attention of an ordinary person,” and there is no evidence that appellant actually read the release. (Appellants’ brief at 33.)

When considering the validity of exculpatory releases, we are governed by the following standard:

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. Princeton Sportswear Corp. v. H & M Associates, 510 Pa. 189, 507 A.2d 339 (1986); Employers Liability Assurance Corp. v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966). In Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963), [our supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract [184 A.3d 982] language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause. Dilks, 192 A.2d at 687.

Topp Copy Products, Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (1993), cited by Chepkevich, 2 A.3d at 1189.

In the context of exculpatory releases used for downhill skiing, we find the rationale behind the Chepkevich court’s decision to be highly instructive to the instant appeal.[7]

As we have stated, downhill skiing … is a voluntary and hazardous activity, and that fact is acknowledged in the Act as discussed above. Moreover, an exculpatory agreement conditioning the use of a commercial facility for such activities has not been construed as a typical contract of adhesion. The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity. The signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable. Moreover, the absence of a definition or illustration of negligence does not render this Release an invalid contract of adhesion; that factor simply does not relate to the concerns implicated by adhesion contracts.

Chepkevich, 2 A.3d at 1191 (internal citations omitted).

Facial Validity

Similar to the Chepkevich court, we must first look to the facial validity of the release. In Chepkevich, our supreme court found that the release signed by the plaintiff did not “contravene any policy of the law. Indeed, the clear policy of this Commonwealth, as articulated by the Act, is to encourage the sport [of downhill skiing] and place the risks of skiing squarely on the skier.” Id. , citing 42 Pa.C.S.A. § 7102(c)(2). The court also stated that, “Pennsylvania courts have upheld similar releases respecting skiing and other inherently dangerous sporting activities.” Id. (collecting cases). Finally, our supreme court held that the release the plaintiff signed was a contract between Hidden Valley and the plaintiff, “relating to their private affairs, specifically [the plaintiff’s] voluntary use of the resort’s facilities.” Id.

[184 A.3d 983] Our discussion in the instant appeal is comparable to the analysis employed by the Chepkevich court. Here, the release signed by appellant does not contravene any policy of the law. Similar to the release used by defendant Hidden Valley in Chepkevich , the release before us relates to the private affairs of appellant and defendants— namely, appellant’s voluntary use of defendants’ facilities. Accordingly, we find that the release signed by appellant is facially valid.

Enforceability

Similar to the Chepkevich court, we must now look to the release’s enforceability. “[T]he Topp Copy/Employers Liability standard requires us to construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.” Id. , citing Topp Copy, 626 A.2d at 99.

In the instant appeal, appellants aver that the release was ambiguous, lacked conspicuity, and “was without print of a size and boldness that draws the attention of an ordinary person.” (Appellant’s brief at 33.) Appellants further aver that there is no evidence that appellant read the release before signing it. (Id. ) We shall address each of these claims individually.

Appellants first aver that the language of the release was ambiguous. Specifically, appellants allege that the release failed to “clearly and unequivocally intend for the defendant[s] to be relieved from liability, using language understandable to an ordinary and knowledgeable person so participants know what they have contracted away.” (Id. at 39.) Appellants then allege that the release failed include any reference to the risk encountered by appellant. (Id. at 43.) Appellants specifically argue that “the risk [appellant] encountered, i.e. , deep and wide frozen trenches in the middle of a beginner’s slope, are not stated because it is nonsensical to contend such a serious hazard is inherent to the sport.” (Id. ) This argument misses the mark. To the contrary, as noted supra , one of the inherent risks explicitly referenced in the release is the presence of ruts on the ski slope. Merriam-Webster defines “rut” as “a track worn by a wheel or by habitual passage.” Merriam-Webster.com.Merriam-Webster, n.d. Web. 2 Jan. 2018. Roget’s Thesaurus identifies “trench” as a synonym of “rut.” Thesaurus.com.Roget’s 21st Century Thesaurus, Third Edition, n.d. Web. 2 Jan. 2018. We therefore find that defendants’ release was not ambiguous, and that it explicitly referenced the risk encountered by appellant.

We now turn to appellants’ claim that the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person.” (Appellants’ brief at 33.) As noted above, the release appellant signed contained information regarding his season ski pass. Following the ski pass information, in a paragraph labeled “PLEASE READ THE FOLLOWING BEFORE SIGNING!![,]” defendants’ release contained the exculpatory language before us for review. (Id. at 34.)

The Pennsylvania Uniform Commercial Code[8] defines “conspicuous” as “so written, [184 A.3d 984] displayed, or presented that a reasonable person against which it is to operate ought to have noticed it.” 13 Pa.C.S.A. § 1201(b)(10). The Code specifically states that a conspicuous term includes the following:

(i) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size.

(ii) Language in the body of a record or display in larger type than the surrounding text, in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

Id. at § 1201(b)(10)(i-ii) (emphasis added).

Here, the release issued by defendants and signed by appellant meets the definition of conspicuous as set forth by the Pennsylvania Uniform Commercial Code. The exculpatory language of the release is preceded by a heading that is written in all capital letters in a size of text equal to the exculpatory language of the release. The heading also contains two exclamation points that call attention to the language of the heading, pursuant to the Code. Accordingly, we find that appellants’ argument that the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person” is without merit, as defendants’ release is conspicuous under the Pennsylvania Uniform Commercial Code.

Finally, we address appellants’ averment that that there is no evidence that appellant read the release before signing it. Our cases provide that “failure to read an agreement before signing it does not render the agreement either invalid or unenforceable.” Toro v. Fitness International LLC, 150 A.3d 968, 975 (Pa.Super. 2016), citing Hinkal v. Pardoe, 133 A.3d 738, 743 (Pa.Super. 2016), appeal denied , 636 Pa. 650, 141 A.3d 481 (Pa. 2016). See alsoSchillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D. Pa. 1990) (“The law in Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract first”). In the instant appeal, appellant was not excused of his duty to read the Release before signing it. Therefore, appellant’s argument that there is no evidence that he read the release before signing is without merit.

Gross Negligence and Reckless Conduct

Finally, appellant avers that the release does not protect defendants from liability for acts of gross negligence and/or reckless conduct. Our supreme court has held that exculpatory releases of reckless behavior are contrary to public policy, “as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.” Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1203 (2012), citing Hall v. Amica Mut. Ins. Co., 538 Pa. 337, 648 A.2d 755, 760 (1994). Therefore, our inquiry centers on whether the conduct alleged by appellants— operating an ATV on a ski slope and creating wheel ruts on the slope— constituted gross negligence and/or reckless conduct.

This court has observed the following pertaining to gross negligence:

In Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695 (Pa.Super. 2000), appeal denied, 567 Pa. 715, 785 A.2d 90 (Pa. 2001), we indicated that when courts have considered the concept of “gross negligence” in various civil contexts, [184 A.3d 985] they have concluded uniformly that there is a substantive difference between “ordinary negligence” and “gross negligence.” Id. at 703. “The general consensus finds [that] gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” Id. at 704 (relying in part on bailment cases and in part on the definition of “gross negligence” as applied to the [Mental Health Procedures Act[9] ] ). Gross negligence may be deemed to be a lack of slight diligence or care compromising a conscious, voluntary act or omission in “reckless disregard” of a legal duty and the consequences to another party. Id. at 704-705 (citing Black’s Law Dictionary 1057 (7th ed. 1999) ). In re Scheidmantel, 868 A.2d 464, 485-486 (Pa.Super. 2005). While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.

Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525-526 (Pa.Super. 2003) (en banc ), quoting Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159, 1164-1165 (1997).

The Tayar court provided the following comparison of recklessness with ordinary negligence:

Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. In Fitsko v. Gaughenbaugh, 363 Pa. 132, 69 A.2d 76 (1949), [our supreme court] cited with approval the Restatement ( [First] ) of Torts[10] definition of “reckless disregard” and its explanation of the distinction between ordinary negligence and recklessness. Specifically, the Restatement (Second) of Torts defines “reckless disregard” as follows:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” Id. , cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:

Reckless misconduct differs from negligence in several important particulars. If differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct [184 A.3d 986] requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man…. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Id. , cmt. g; see also AMJUR Negligence § 274 (“Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, and indifference whether or not wrong is done, and an indifference to the rights of others”). Our criminal laws similarly distinguish recklessness and negligence on the basis of the consciousness of the action or inaction. See 18 Pa.C.S.A. § 302(b)(3), (4) (providing that a person acts recklessly when he “consciously disregards a substantial and unjustifiable risk,” while a person acts negligently when he “should be aware of a substantial and unjustifiable risk”).

This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. Tayar, 47 A.3d at 1200-1201. ` Here, we find as a matter of law, that the record does not reflect gross negligence or reckless conduct on the part of defendants. Specifically, we agree with the trial court’s following conclusion:

[Appellants] aver that Defendants’ snow-making crew created the “trenches” by operating an all-terrain-vehicle across part of the ski-slope, rather than entirely along the sides of the slopes.[Footnote 7] While apparently against normal maintenance policy and procedures and arguably negligent, we do not believe these actions amount to gross negligence or recklessness. Defendants’ employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that— although possibly dangerous— was not inherently unexpected upon a ski slope. We view such conduct to be a matter of “… mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” rather than recklessness.

[Footnote 7] Defendants seemingly concede the cause of the “trenches” and Defendants’ employees conceded that such actions were improper in normal slope maintenance process.

Trial court opinion, 5/24/17 at 8-9.

Accordingly, we find that defendants did not engage in grossly negligent or reckless conduct, and that the Release provided by defendants and signed by appellant is enforceable.

Order affirmed.

Bowes, J. joins this Opinion.

Stabile, J. concurs in the result.

———

Notes:

[1] For clarity, we will refer to Mr. Kibler as “appellant” throughout this memorandum.

[2] Appellants’ four issues address two overarching issues: voluntary assumption of risk and the validity of the release attached to the season pass provided by defendants. Accordingly, for the purposes of our review, we shall address issues A and D together and issues B and C together.

[3] Subsections (a) and (a.1) address contributory negligence and joint and several liability.

[4] This court is the intermediate court of appeals in New York.

[5] The New York statute provides, in relevant part:

§ 18-101. Legislative purpose

The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state ….

N.Y. General Obligations Law § 18-101.

[6] As noted by Justice Baer in his concurring opinion in Chepkevich , a review of the release issued by defendants and signed by appellant is not wholly necessary. Chepkevich, 2 A.3d at 1198 (Baer, J., concurring). The majority stated that, “consideration of alternative holdings is subject to prudential concerns, and we believe there are prudential concerns to consider the Release here.” Id. at 1188 n.16. We will follow the lead of the majority and analyze both issues as they have both been briefed and argued before this court.

[7] The release before the Chepkevich court was printed on an 8½ by 11-inch sheet of paper entitled “RELEASE FROM LIABILITY” and contained the following language:

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to variations in snow and terrain, ice and icy conditions, moguls, rocks, debris (above and below the surface), bare spots, lift towers, poles, snowmaking equipment (including pipes, hydrants, and component parts), fences and the absence of fences and other natural and manmade objects, visible or hidden, as well as collisions with equipment, obstacles or other skiers …. All the risks of skiing and boarding present the risk of serious or fatal injury. By accepting this Season Pass I agree to accept all these risks and agree not to sue Hidden Valley Resort or their employees if injured while using their facilities regardless of any negligence on their part. Chepkevich, 2 A.3d at 1176.

[8] As in prior cases, we note that the Uniform Commercial Code is applicable to the sale of goods, while this case pertains to the sale of services; “nevertheless, we find the UCC’s warrant disclaimer provision in Article 2, and its interpreting caselaw, provides guidance in the instant case.” Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266, 1274 n.12 (Pa.Super. 2006).

[9] 50 P.S. § § 7101-7503.

[10] The Restatement (Second) of Torts was published in 1965.

———


Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U

Marino v. Morrison, 2008 N.Y. Misc. LEXIS 10971, 2008 N.Y. Misc. LEXIS 10971, 2016 NY Slip Op 31876(U

Michael Marino, an infant under the age of 18, by his Mother and Natural Guardian, Elena Marino, and Elena Marino, Individually, Plaintiffs,

v.

Richard Morrison, Jr, Carmela Morrison and Richard Bedrosian, Defendants.

No. 2016-31876

Index No. 10-11831

CAL. No. 15-00738OT

Supreme Court, Suffolk County

September 8, 2016

Unpublished Opinion

MOTION DATE 9-15-15

ADJ. DATE 3-1-16

SURIS & ASSOCIATES, P.C. Attorney for Plaintiffs.

JOHN T. McCARRON, PC Attorney for Defendant C. Morrison.

PENINO & MOYNIHAN, LLP Attorney for Defendant Bedrosian.

PRESENT: Hon. PETER H. MAYER, Justice

PETER H. MAYER, J.S.C.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/Order to Show Cause by defendant Carmela Morrison, dated August 19, 2015, and supporting papers; (2) Notice of Cross Motion by defendant Richard Bedrosian, dated August 19, 2015, and supporting papers; (3) Affirmation in Opposition by plaintiffs, dated December 1, 2015, and supporting papers; (4) Reply Affirmations by defendants, dated February 28, 2016 and January 4, 2016, and supporting papers; (and after hearing counsels’ oral arguments in support of and opposed to the motion); and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. 001) by defendant Carmela Morrison and the motion (seq, 002) by defendant Richard Bedrosian are consolidated for purposes of this determination; and it is

ORDERED that the motion by defendant Carmela Morrison for summary judgment dismissing the complaint against her is granted; and it is further

ORDERED that the motion by defendant Richard Bedrosian for summary judgment dismissing the complaint against him is granted.

This action was commenced by plaintiff to recover damages for injuries infant plaintiff Michael Marino allegedly sustained as a result of an accident involving an all-terrain vehicle (ATV) on July 28. 2009. The complaint alleges that Mr. Marino was a passenger on the rear seat of the ATV, that he was caused to be ejected from the ATV, and that the accident took place on property located behind the address known as 29 Buckingham Drive, Dix Hills, New York. Elena Marino individually asserts a derivative claim for loss of love, services, companionship, and household support. Defendant Richard Bedrosian asserts cross claims against defendant Richard Morrison, Jr., who has tailed to appear in this action.

Defendant Carmela Morrison now moves for summary judgment in her favor on the grounds that she is exempt from liability pursuant to General Obligations Law §9-103. that Mr. Marino assumed the risk inherent in the activity, and that plaintiffs lack knowledge as to the location of the alleged accident or the manner in which it occurred. In support of her motion, Ms. Morrison submits copies of the pleadings and transcripts of the deposition testimony of Michael Marino, Richard Bedrosian, and herself.

Defendant Richard Bedrosian also moves for summary judgment in his favor on the grounds that he is exempt from liability pursuant to General Obligations Law § 9-103, plaintiffs lack knowledge as to the location of the alleged accident or die maimer in which it occurred, and he had no knowledge that Mr. Marino was present on his property, and Mr. Marino assumed the risk inherent in the activity. In support of his motion, he submits copies of the pleadings and transcripts of the deposition testimony of himself and Michael Marino.

At his deposition, infant plaintiff Michael Marino testified that, on the date in question, he was 15 years old and was spending time at the house of his school friend, Richie Morrison. Mr. Marino indicated that Mr. Morrison’s father purchased an ATV for Mr. Morrison “a few years” prior, which was parked on the premises next to a shed. Mr. Marino explained that he, Mr. Morrison, and Mr. Morrison’s cousin were waiting for a few friends to arrive at Morrison’s house. Mr. Marino testified that at some point, after it had gotten dark outside and when Mr. Morrison’s parents were not home, Mr. Morrison and his cousin began drinking liquor they had stolen from Mr. Morrison’s parents’ liquor cabinet, Mr. Marino explained that the young men had been playing video games in Mr. Morrison’s basement for a number of hours, but eventually went into the backyard, at which time Mr. Morrison and Mr. Morrison’s cousin began driving the ATV in question around the backyard of the premises. Mr. Marino, upon being offered a ride on the ATV, stated that he climbed aboard and sat behind Mr. Morrison and that neither one of them wore a helmet. Mr. Marino testified that after he sat down on the ATV, Mr. Morrison began driving it on the premises and the next thing he remembers is waking up in a basement with people “picking branches out of [his] head.” He stated that although they started out riding the ATV in Mr. Morrison’s backyard, due to his losing consciousness he is unable to identify exactly where the accident took place. Mr. Marino testified that he later came to learn from “mutual friends” that the accident occurred due to the ATV’s brakes failing, the ATV hitting something, and he and Mr. Morrison being thrown off the ATV. Mr. Marino further testified that he was later informed by his friend, Peter Frisina, that he, too, was injured in a similar way on that same ATV.

Regarding his experience with ATVs. Mr. Marino testified that his father owned one and he had both driven it and been a passenger on it “since [he] was young, ” Mr. Marino stated that neither Carmela Morrison nor Richard Bedrosian ever gave him permission to ride on Mr. Morrison’s ATV, and that neither parent was aware of any alcohol consumption by the young men.

At her deposition, Carmela Morrison testified that her partner, Richard Bedrosian, owns the subject premises. She further testified that she was not home at the time of the alleged ATV accident, but was told by various parties that, contrary to plaintiffs’ allegations, Mr. Marino had been the driver of the ATV and that her son was the rear passenger. Ms. Morrison indicated that she had taken her son and Mr. Marino to the beach earlier in the day with Mr. Marino’s mother’s permission. She stated that at approximately 6:00 p.m., after they all had returned to the subject premises, she left the house in order to attend a networking event. She explained that she asked Mr, Marino if his mother was coming to pick him up and he said “yes.” She informed him that he was welcome to stay to eat some pizza that she had recently ordered. She testified that she then left the young men at the premises with Mr. Morrison’s 20-year-old sister, Kristina, who was preparing to go out and was not present at the time of the accident. Carmela Morrison indicated that at approximately 8:00 p.m. she received a call saying that there had been an accident at the premises and she went home immediately. When asked whether her son obtained permission from her to use the ATV on the date in question, she replied “[a]bsolutely not.” Regarding prior accidents involving the ATV, Ms. Morrison testified that a few months prior to the date in question, Mr. Morrison’s friend, Peter, was driving it, fell off of it, and sustained scratch to his face. She further testified that after Peter’s fall, she “took the key and gave it to Bedrosian and said T don’t want this ATV used at alt.'”

At his deposition, Richard Bedrosian testified that he is the owner of the subject premises, but does not know exactly where the accident in question occurred, although he was told by his girlfriend, Carmela Morrison, that it happened “off property, ” on state land behind his backyard. He stated that his property is approximately 1.9 acres in size, completely fenced, with the backyard consuming % of that land. Of that backyard, he explained, Vi of it is ungroomed woods. Regarding the ATV in question, Mr. Bedrosian testified that it was a Christmas gift from Mr. Morrison’s biological father, defendant Richard Morrison, Jr., to Mr. Morrison, which he received approximately seven months before the accident. Mr. Bedrosian testified that he strongly disapproved of the ATV being on his property, but was told by Mr. Morrison’s father that he had no place to store it. Mr. Bedrosian indicated that Mr. Morrison would occasionally drive it around the backyard in circles or into the wooded area, but that Mr. Morrison’s father promised Mr. Bedrosian that he would take Mr. Morrison to off-premises locations to ride it and, based on that proviso, Mr. Bedrosian allowed the ATV to be stored on his property. Mr. Bedrosian testified that Mr. Morrison was forbidden from operating it if he or Carmela Morrison were not home.

Regarding the date in question, Mr. Bedrosian testified that he was told by Carmela Morrison, Mr. Morrison, and Tony Yacende that Mr. Marino was the driver of the ATV at the time and that Mr. Morrison was the passenger. Also, Mr. Bedrosian explained that no one was permitted to operate the ATV on the date in question because he had taken its only key and put it in a desk in his home office- a location that was “off limits to everybody.”

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 19 N.Y.S.3d 488 [2015]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Nomura, supra; see also Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (Daliendo v Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 [2d Dept 1989]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]).

It is axiomatic that for a plaintiff to recover against a defendant in a negligence action, plaintiff must prove defendant owed plaintiff a duty and that the breach of that duty resulted in the injuries sustained by plaintiff (see Lugo v Brentwood Union Free School Dist, 212 A.D.2d 582, 622 N.Y.S.2d 553 [2d Dept 1995]; Kimbar v.Estis, 1 N.Y.2d 399, 153 N.Y.S.2d 197 [1956]).

“The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of die sport generally and flow from such participation” (Shivers v Elwood Union Free Sch. Dist, 109 A.D.3d 977, 978 [2d Dept 2013] [internal quotation omitted]; see Trupia v Lake George Cent. School Dist, 14 N.Y.3d 392, 901 N.Y.S.2d 127 [2010]; Morgan v State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421 [1997]). “A plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law” (id at 978; see Leslie v. Splish Splash at Adventureland, 1 A.D.3d 320, 766 N.Y.S.2d 599 [2d Dept 2003]; Morgan v State of New York, supra). “It is not necessary to the application of the doctrine that the injured plaintiff should have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Cruz v Longwood Cent Sch. Dist., 110 A.D.3d 757, 758, 973 N.Y.S.2d 260 [2d Dept 2013] [internal quotation omitted]).

“There is … a duty by a parent to protect third parties from harm resulting from [his or her] infant child’s improvident use of a dangerous instrument, at least, and perhaps especially, when the parent is aware of and capable of controlling its use” (Nolechek vGesuale, 46 N.Y.2d 332, 336, 413 N.Y.S.2d 340 [1978]), “Parents are permitted to delegate to their children the decision to participate in dangerous activities, but they are not absolved from liability for harm incurred by third parties when the parents as adults unreasonably, with respect to such third parties, permit their children to use dangerous instruments” (id. at 339). “In order for a third-party claim of this kind against a parent or guardian . . . negligence must be alleged and pleaded with some reasonable specificity, beyond mere generalities” (LaTorre v Genesee Mgmt, 90 N.Y.2d 576, 584, 665 N.Y.S.2d 1 [1997]).

Defendants Carmela Morrison and Richard Bedrosian, both relying on nearly identical arguments in support of their motions, have established a prima facie case of entitlement to summary judgment by offering sufficient proof that Mr. Marino voluntarily assumed die risks inherent in riding an ATV (see Shivers v Elwood Union Free Sch. Dist., supra; see generally Alvarez v Prospect Hosp., supra). Moving defendants proved that Mr. Marino voluntarily boarded the ATV, either as a driver or a passenger, having possessed significant prior experience with such machines. Further, there is nothing in the record indicating that Mr. Marino did not have full awareness of Mr. Morrison’s consumption of alcohol, if true, the weather and lighting conditions, and the landscaping of the backyard prior to riding on the ATV. Even if the Court were to assume, for the purposes of this decision, that Mr. Morrison’s consumption of alcohol, or some other factor, exceeded the level of risk Mr. Marino can be said to have assumed, plaintiffs have not proven the manner in which Mr. Marino allegedly sustained his injuries or even that Mr. Marino’s injuries were sustained on Mr. Bedrosian’s property. Accordingly, moving defendants, having established their entitlement to summary judgment on the ground of Mr. Marino’s primary assumption of the risk, the Court need not reach defendants’ other arguments.

Defendant having established a prima facie case entitlement to summary judgment, the burden shifted to plaintiff to raise an issue of fact necessitating a trial (see Alvarez v Prospect Hosp., supra). Plaintiffs argue that: (1) General Obligations Law § 9-103 does not apply to the facts of this case; (2) that enhanced risks were present at the time of Mr. Marino’s alleged injury, which he cannot be expected to assume; and (3) defendants owed a duty of care to Mr. Marino and failed to supervise him properly. In opposition, plaintiffs submit a copy of the Bill of Particulars and Michael Marino’s own affidavit.

Generally, “a plaintiff who suffers from amnesia as the result of the defendant’s conduct is not held to as high a degree of proof in establishing [his or her] right to recover for [his or her] injuries as a plaintiff who can describe the events in question” (Menekou v Crean, 222 A.D.2d 418, 419, 634 N.Y.S.2d 532 [2d Dept 1995]; Sawyer v Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 502 N.Y.S.2d 696 [1986]; Santiago v Quattrociocchi, 91 A.D.3d 747, 937 N.Y.S.2d 119 [2d Dept 2012]). However, in order to invoke that lower burden of proof, plaintiff must not only make a prima facie case, but must also submit an expert’s affidavit demonstrating the amnesia through clear and convincing evidence (Menekou v Crean, supra). Plaintiffs have failed to meet that burden here. Therefore, plaintiffs’ attempts to raise triable issues will be evaluated in the usual manner (see Alvarez v Prospect Hosp., supra).

As Richie Morrison, Tony Yacende, and Peter Frisina have not been deposed, the Court must decide this matter solely on the three deposition transcripts and single affidavit submitted by the parties herein. The undisputed facts can be summarized as follows: (I) Mr. Bedrosian owned the subject premises, but was unaware of Mr. Marino’s presence there at the time of the incident; (2) Mr. Marino, Mr. Morrison, and Mr. Yacende were unsupervised for a period of time on the evening in question; (3) Mr. Marino voluntarily rode on an ATV while not wearing protective equipment; (4) Mr. Marino was knocked unconscious at some point in the evening and awoke in a basement surrounded by friends and his father; (5) Mr. Marino was transported to the hospital via ambulance; (6) Peter Frisina sustained an injury while riding the subject ATV on an occasion prior to plaintiffs alleged injuries; and (7) Ms. Morrison and Mr. Bedrosian took the keys for the ATV away from Mr. Morrison and forbade Mr, Morrison using the ATV after Peter Frisina’s injury.

Here, plaintiffs rely almost entirely on hearsay not subject to any exception, in an attempt to raise triable issues. Any reference by plaintiffs’ counsel to “defective” brakes is unfounded and speculative (see Daliendo v Johnson, supra). Further, plaintiffs have failed to provide any proof as to the mechanism of Mr. Marino’s alleged injury (see Passaro v Bouquio, 79 A.D.3d 1114, 914 N.Y.S.2d 905 [2d Dept 2010]}. Based upon the admissible, non-hearsay evidence submitted, it is just as likely that Mr. Marino jumped from the moving ATV; took an uneventful ride on the ATV, then attempted to climb a tree and fell to the ground; or was hit in the head by some unknown object, causing him to become unconscious, as it is that the ATV crashed and he was thrown from it. Furthermore, the “dangerous instrument” exception is inapplicable here, as plaintiffs have not submitted evidence that movants gave Mr. Morrison permission to use the ATV or supplied him with access to it (see Nolechek v Gesuale, supra). Instead, uncontroverted evidence has been submitted that movants took affirmative steps to deny use of the ATV to Richie Morrison.

Accordingly, the motions by defendants Carmela Morrison and Richard Bedrosian for summary judgment in their favor dismissing the complaint against them is granted.


Get check boxes and initials out of your release!

If the defendants release did not have a catch all phrase at the bottom of the document the release would be invalid because an initial had not been signed by the plaintiff.

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

State: Pennsylvania: United States District Court for the Middle District of Pennsylvania

Plaintiff: Patrice Scott-Moncrieff

Defendant: The Lost Trails, LLC, et al

Plaintiff Claims: Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The plaintiff did not initial one of the initial boxes on the release she signed. This gave the plaintiff enough of an argument to make an appellate argument. But for a final paragraph that covered the uninitialed box language this release would have failed.

Facts

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses.

Analysis: making sense of the law based on these facts.

The court first reviewed the validity of releases under Pennsylvania law. Pennsylvania has a three-part test to determine if releases are valid.

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state.

The three requirements all evolve around the public policy argument. It is against public policy to have someone sign a release for a necessity, where the bargaining power is not equal or if the contract is so nasty it should not be signed by anyone. A release, a contract, to ride an ATV is valid because it is not a necessity, it is between parties of equal bargaining power and it is voluntary.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”

If the release passes the first three tests, it still must be scrutinized by the court to determine if it clearly relieves the defendant of liability. If the language of the agreement sets forth the requirements necessary for the plaintiff to understand she is liable for her injuries.

Even if an exculpatory clause is facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. The following standards guide a court’s determination of the enforceability of an exculpatory clause:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

If the release, or any contract under Pennsylvania law meets those tests it is finally reviewed to determine if both parties clearly understood the intent of the agreement. In the case of a release, both parties must understand that the possible plaintiff is giving up his or her right to sue the possible defendant.

Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter.

In this case, the court found the release passed all of the tests.

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

Once the release was found to be valid the next issue was whether or not the plaintiff had signed the release. The plaintiff argued because she had not initialed an initial box, had not read the release in its entirety

One who is about to sign a contract has a duty to read that contract first.” In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.)

The court did look at situations were the release was enforceable even if the plaintiff did not read the release or could not read the release.

…(written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

The plaintiff argued the release was unenforceable because it was inconspicuous. However, the argument seemed to be based on case law that found waivers to be void then the real facts of this case.

The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply.

The saving language of the release that covered the un-initialed section 10 was. Even though paragraph 10 was not initialed, the heading clearly stated what the document was and the intentions of the parties. The language that covered the un-initialed paragraph 10 was:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

The court found that the entire agreement was covered by this saving language above. So, the failure to initial one paragraph was not enough to void the release.

The court summarized its reasoning for finding the release valid and upholding the dismissal of the plaintiff’s claims because of the release.

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable.

So Now What?

But for language at the bottom of the release which the court found to cover for the language that was not initialed the release would have failed. It is important to note; the court analysis stated the language that was not initialed was not part of the release.

If you have initial boxes, initials, etc., and one box is not initialed, in Pennsylvania that paragraph that is not initialed or initialed is invalid. Dependent upon the language, your release maybe void, if you don’t have the boxes checked or initialed.

Why use them anyway. Here the court explains why they are unnecessary, the language at the bottom of your release should tie everything together. Once you sign you acknowledge that you have read and understood the entire document. The checkboxes or initials can only hurt you in a release, not help you.

What do you think? Leave a comment.

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Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC

United States District Court for the Middle District of Pennsylvania

August 29, 2018, Decided; August 29, 2018, Filed

CIVIL ACTION NO. 3:16-CV-1105

Reporter

2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants

Subsequent History: Appeal filed, 09/13/2018

Core Terms

exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym

Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.

For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.

Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM OPINION

Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.

I. Factual Background and Procedural History

The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.

All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.

Local Rule 56.1 (emphasis added).

To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).

The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:

In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.

By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:


2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.

3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.

4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.

5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.

6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.

7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.

8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.

9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.

(Doc. 54-1, at 20-21).

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

(Doc. 54-1, at 21).

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).

As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. Discussion

Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).

A. The Exculpatory Clause is Valid

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.

B. The Exculpatory Clause is Enforceable

Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Topp Copy, 626 A.2d at 99.

The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.

1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:

Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?

A: Yes.

Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?

A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.


Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.

A: Yes.

Q: And you’re not involved in that part of it, the sign in, and the waiver.

A: No, no. Leslie or one [*16] of her employees would work the front desk.

(Doc. 54-1, at 12; Anneman Dep. at 36).

The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.

Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

3. The waiver is properly conspicuous.

Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.

However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).

The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.

Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

(Doc. 54-1, at 21).

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.

IV. Conclusion

For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.

An appropriate Order follows.

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

ORDER

AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.

BY THE COURT:

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge


No written signature on the release so there is no release, even though the plaintiff acknowledged she would have signed one.

A contract requires a meeting of the minds and the agreement to contract. Even though the defendant proved the plaintiff had the intent, the defendant could not prove their own intent.

Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

State: Colorado

Plaintiff: Megan Soucy

Defendant: Nova Guides, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2015

Warning, this case is probably not over so any decision, here can be altered, changed or appealed. However, the decision is so interesting it was worth the review.

The case involves an All-Terrain Vehicle (ATV) accident. Normally, engines are outside the scope of these articles. However, the facts surrounding the incident are not at issue or even discussed. The main issue is the defense of release raised by the plaintiff.

The plaintiff, her mother and sister were visiting Colorado. While there the party contracted with the defendant for a jeep tour. During that tour, all three signed a release. Two days later, the parties came back and contracted for an ATV tour. The mother and sister signed the release, but the plaintiff did not.

The release for both activities was identical, in fact, it covered, Jeep Tours, ATV, Mtn. Bike, and Hiking in one document. Dependent upon what activity the person signed up for the appropriate box was checked. For the first tour, the box Jeep Tour was checked. The mother and sisters ATV box was checked for the second tour.

The release in the language even spoke the risks of ATV tours but all in the same sentence as the other tours.

I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles.

However, because the box for the only release the plaintiff signed was for a jeep tour, the court did not by the argument it also applied to the ATV tour.

The interrogatory answers of the plaintiff and her testimony in deposition indicated she knew releases were required, understood them, had signed them in the past and would have signed one if asked for the ATV tour.

Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.

This decision is based on a Motion for Summary judgment filed by the defendant based on “release” which was denied by the court.

Analysis: making sense of the law based on these facts.

Under Colorado law contracts can be formed orally and based on the party’s intent.

Under Colorado law, contractual conditions may be express or implied. When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.

A release is an agreement that follows the rules of interpretation and construction of contracts.

By her acts of paying for and taking the ATV tour after admitting she would have signed a release the court found the necessary intent on the part of the plaintiff.

Accordingly, the Court concludes it is not disputed that Soucy paid for a commercial service, willingly received that service, and believed the waiver she signed on July 9, 2012 — in which she “assume[d] the risk of personal injury, death, and property damage … which may result from [her] participation … in … all terrain vehicle riding” and waived “any claims based on negligence or breach of warranty [she] might assert on [her] own behalf … against Nova Guides, Inc.” — was valid and necessary for her participation in the ATV tour on July 11, 2012.

However, the reason why the court dismissed the defendant’s motion for summary judgment was the court could not find the same intent on the part of the defendant.

A contract implied in fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement.

Because the defendant could not and did not offer any evidence that it had the same intent as the plaintiff, there was no proof of the intent to contract by the defendant, and the motion was denied.

However, for an oral agreement to be enforceable, there must be mutual assent from both parties. The evidence proffered by the parties does not show that Nova intended to be bound by an agreement with Soucy to waive liability for the ATV tour on July 11, 2012. Because an issue as to this material fact exists, the Defendant’s Motion for Summary Judgment is denied.

Again, this is not a final decision. The issue can be reargued before or at trial with the defendant showing the intent to contract.

So Now What?

There are several major flaws in this case by the defendant besides not being able to prove the intent to contract. This is a classic case of making your release complicated thinking it will save your butt, and the complications created a nightmare.

The first is the defendant is using a release with check boxes. If the wrong box is checked or not checked, then the release has no value. The same thing could have been accomplished, and the case ended if the boxes were eliminated.

The second is no system to make sure the release is signed by all adults and by adults for all children before the trip starts. The classic example was a rafting company that required participants to hand in their release to receive their PFD. No release, no PFD. No PFD you could not board the bus to go to the put in.

While working for one whitewater rafting company the shop manager realized one person had not signed a release. She ran and caught the bus before it pulled out and asked who had not signed the release. No one said anything. She said OK, everyone off the bus; you can get back on when I call your name. She had every release with her, and the bus was not leaving until everyone had signed.

The non-signer, not pretty sheepish, raised his hand and was handed a release to sign.

Normally, I write releases around activities. You can cover the risks of most paddlesports in one release for kayaking, rafting, stand up paddleboards, etc. Oceans pose different threats than lakes and streams so ocean activities are on a different release.

Here, however, the release combined the risks of human powered and motorized activities. Jeep tours and ATV tours probably run similar risks. However, they also have different state laws applicable to them. Mountain biking has different risks than hiking. Dependent upon the area where the mountain biking occurs and the hiking you might be able to cover the risks in one document.

However, to be on the safe side, I think three different releases should be used. Jeep and ATV tours on one, mountain biking on the second and hiking on the third. It would be easy to track them, having each one printed on a separate color of paper. You know based upon the color of the paper on the release what the customers are expecting and where they should be going.

Don’t make your release complicated in an attempt to make it work, or make it cover too much. This is one instance where killing a few more trees to write the release may save a hundred trees in defending a lawsuit.

What do you think? Leave a comment.

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By Recreation Law       Rec-law@recreation-law.com              James H. Moss

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Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

Soucy, v. Nova Guides, Inc., 2015 U.S. Dist. LEXIS 95438

Megan Soucy, Plaintiff, v. Nova Guides, Inc., Defendant.

Civil Action No. 14-cv-01766-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

2015 U.S. Dist. LEXIS 95438

July 20, 2015, Decided

July 20, 2015, Filed

COUNSEL: [*1] For Megan Soucy, Plaintiff: Gregory A. Gold, Sommer D. Luther, LEAD ATTORNEYS, Gold Law Firm, L.L.C, The, Greenwood Village, CO; Joel Stuart Rosen, Cohen Placitella & Roth, Philadelphia, PA.

For Nova Guides, Inc., Defendant: David James Nowak, Tracy Lynn Zuckett , White & Steele, P.C., Denver, CO.

JUDGES: Michael E. Hegarty, United States Magistrate Judge.

OPINION BY: Michael E. Hegarty

OPINION

ORDER ON MOTION FOR SUMMARY JUDGMENT

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Defendant’s Motion for Summary Judgment [filed May 28, 2015; docket #18]. The motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the motion. Based on the record herein and for the reasons that follow, the Court denies the Defendant’s motion.1

1 On September 8, 2014, the parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c).

BACKGROUND

I. Procedural History

Plaintiff Megan Soucy (“Soucy”) initiated this action on June 24, 2014, alleging essentially that Defendant Nova Guides, Inc. (“Nova”) was negligent in causing her injuries when the all-terrain vehicle (“ATV”) she was driving overturned during a trail ride. Complaint, docket #1. In response to the Complaint, Nova filed [*2] an Answer asserting 13 affirmative defenses, including “Plaintiff’s claims may be barred or limited by contracts entered into by the parties.” Answer, docket #7.

Thereafter, the Court held a Scheduling Conference on September 22, 2014 at which the Court set deadlines for discovery and the filing of dispositive motions. Dockets ## 12, 13. Discovery progressed and, well before the deadline, Nova filed the present motion for summary judgment arguing no triable issues exist as to whether Soucy contractually waived her claims in this action. See docket #18. Specifically, Nova contends that its Waiver of Liability is valid pursuant to Colorado law and the waiver is enforceable despite lacking Plaintiff’s signature. Id.

Soucy counters that she was never presented with nor signed a Waiver of Liability before the July 11, 2012 tour during which she was injured. She argues that the July 9, 2012 waiver she signed before a Jeep tour did not apply to the July 11 ATV tour, since only the Jeep tour was referenced in the July 9 waiver. She further asserts that any release that may be construed as signed on her behalf by her mother is unenforceable. Finally, Soucy contends that any evidence of her intent [*3] is factually and legally irrelevant.

Nova replies arguing that Soucy’s own testimony demonstrates she intended to be bound by the Waiver of Liability, despite its lack of her signature.

II. Findings of Fact

The Court makes the following findings of fact viewed in the light most favorable to Soucy, who is the non-moving party in this matter.

1. While vacationing in Vail, Colorado in July 2012, Soucy, her mother, and her sisters participated in a jeep tour on July 9, 2012 and an ATV tour on July 11, 2012, both guided by Ben Hilley of Nova Guides, Inc. Deposition of Megan Soucy, April 6, 2015 (“Soucy Depo”), 97: 20-25; 129: 12 – 130: 16, docket #19-1.

2. Soucy was 20 years old in July 2012. Id., 136: 23 – 137: 4.

3. Based on her past experience, Soucy understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “safari trip” (also referred to as the “Jeep tour”). Id., 143: 13-20; 145: 16-20.

4. Prior to participating in the Jeep tour on July 9, 2012, Soucy signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “Jeep tour” as the type of tour selected (the other options are “ATV,” “Mtn. Bike,” and “Hiking”). Id., 144: [*4] 4-145: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 9, 2012, docket #19-2.

5. Nova’s Waiver of Liability includes the following language:

PARTICIPANT’S AGREEMENT TO ASSUME THE RISKS OF PERSONAL INJURY AND PROPERTY DAMAGE ASSOCIATED WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, AND JEEP TOURS AND TO RELEASE NOVA GUIDES, INC., ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, THE U.S. FOREST SERVICE, AND THE U.S. GOVERNMENT FROM ANY AND ALL LIABILITY IN CONNECTION WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HUMMER AND JEEP TOURING ACTIVITIES.

*THIS IS A RELEASE OF LIABILITY. PLEASE READ BEFORE SIGNING. DO NOT SIGN OR INITIAL THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.

1. I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. … I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles. I understand that accidents or illness can occur in remote places without medical facilities. … I understand that route or activity, chosen as a part of our outdoor [*5] adventure may not be the safest, but has been chosen for its interest. I UNDERSTAND THAT THE ACTIVITIES OF MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, JEEP TOURING, like all outdoor activities involve the risk of contact with wild animals, falls, equipment failure, collisions and/or contact with manmade or natural objects and other riders and drivers which can result in personal injury, property damage and death.

2. I expressly assume all risk of personal injury, death, and property damage set forth in paragraph 1 above which may result from my participation and my minor children’s participation in mountain biking, all terrain vehicle riding, hiking, and jeep touring and waive any claims based on negligence or breach of warranty I might assert on my own behalf or on behalf of my minor children against Nova Guides, Inc., its officers, directors, agents and employees, the U.S. Forest Service, and the U.S. Government for personal injuries, death, and/or property damage sustained while participating in mountain biking activities, all terrain vehicle riding, hummer and jeep touring with Nova Guides, Inc.

Nova Guides Lease Agreement and Waiver of Liability, docket #19-2.

6. Soucy recognized [*6] that operating an ATV involves a risk of injury. Id.; see also Soucy Depo, 154: 8-13.

7. Prior to Soucy’s and her family’s participation in the ATV tour on July 11, 2012, Soucy’s mother, Susan Pesot, completed and signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “ATV” as the type of tour selected. Deposition of Susan Pesot, April 7, 2015 (“Pesot Depo”), 92: 2 – 93: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 11, 2012, docket #19-3.

8. Soucy did not sign the July 11, 2012 Waiver of Liability. Id.

9. Pesot signed the waiver only on behalf of herself and her two minor children (Soucy’s sisters). Pesot Depo, 92: 12-17. She listed Soucy and Soucy’s other sister as participants on the ATV tour “because Ben told [her] to write down all the people who will be driving the vehicles.” Id., 93: 2-13.

10. Pesot did not sign the waiver on behalf of Soucy, who was not a minor, nor asked Soucy to sign the waiver because “that was not [her] responsibility to have [Soucy] sign it.” Id., 92: 12-25, 93: 1.

11. Also, Hilley did not ask Soucy to sign the waiver; however, Soucy would have signed the Waiver of Liability completed by Pesot on July 11, [*7] 2012, had it been presented to her by Hilley or Pesot and she were asked specifically to sign it. Soucy Depo, 215: 4-8 and 217: 7-15.

12. Soucy thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012. Id., 144: 4 – 145:14.

13. Soucy participated in the ATV tour on July 11, 2012. Id., 171: 17-21.

LEGAL STANDARDS

A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party’s claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence [*8] may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).

The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (“[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation omitted); see also Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” [*9] Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

ANALYSIS

Here, it is undisputed that Soucy did not sign a form waiver of liability for the ATV tour guided by Nova on July 11, 2012. According to Soucy, that is the end of the story. However, Nova argues the lack of a signature on a written agreement “is not always necessary to create a binding agreement.” Motion, docket #18 at 10. Nova contends that Colorado law allows consideration of the parties’ intent in the formation of a contract. Id. Soucy counters that extrinsic evidence, such as the parties’ intent, “is not admissible in a case where the court properly determines as a matter of law that an agreement is unambiguous.” Response, docket #19 at 17. Soucy argues alternatively that, “whether the parties have entered a contract is a question of fact.” Id. at 18.

The Court finds that, because Soucy does not challenge the validity and enforceability of Nova’s waiver of liability, the question is not whether terms of a formal contract are ambiguous (since no formal contract exists between Soucy and Nova from July 11, 2012), but whether an agreement between Soucy and Nova was formed on July 11, 2012 before Soucy was injured on the tour.

Under Colorado law, contractual conditions may be express [*10] or implied. Lane v. Urgitus, 145 P.3d 672, 679 (Colo. 2006) (determining whether an agreement to arbitrate existed between the parties) (citing Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004)). When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.” Id. (quoting Eisenhart v. Denver, 27 Colo. App. 470, 478, 150 P. 729, (1915), aff’d, 64 Colo. 141, 170 P. 1179 (1918)). “In contractual settings, [courts] can look to the circumstances surrounding the contract’s formation in construing the contract, in order to carry out the intent of the contracting parties.” Id. (citing Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998)); see also James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 372 (Colo. App. 1994) (“Generally, whether a contract exists is a question of fact to be determined by all of the surrounding circumstances.”).

Whether the parties to an oral agreement become bound prior to the drafting and execution of a contemplated formal writing is a question largely of intent on their part. Mohler v. Park Cnty. Sch. Dist. RE-2, 32 Colo. App. 388, 515 P.2d 112, 114 (Colo. App. 1973). “That intent can be inferred from their actions and may be determined by their conduct prior to the time the controversy arose.” Id. (citing Coulter v. Anderson, 144 Colo. 402, 357 P.2d 76 (Colo. 1960)); see also Moore, 892 P.2d at 372.

“A release [of liability] is an agreement to which the general rules of interpretation and construction apply.” Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 878 (10th Cir. 2013). In Squires, the court analyzed extrinsic evidence including a letter and the plaintiff’s statements of belief to determine whether a waiver of liability was [*11] procured through fraudulent inducement. Id. at 878-79.

Here, in response to questions by Nova’s counsel, Soucy testified during her deposition that:

o Based on her past experience, she understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “Jeep tour”;

o Prior to participating in the Jeep tour on July 9, 2012, she signed a Nova Guides Lease Agreement and Waiver of Liability;

o She recognized that operating an ATV involves a risk of injury;

o She did not sign an identical form Waiver of Liability prior to participating in the ATV tour on July 11, 2012;

o She would have signed the Waiver of Liability completed by her mother on July 11, 2012, had it been presented to her by Hilley or her mother and she were asked specifically to sign it; and

o She thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012.

While Soucy’s counsel asked her questions during the deposition, his questions did not concern any waiver of liability. Soucy Depo, 254: 9 – 255: 17. In addition, Soucy did not provide an affidavit or other testimony in response to the present motion. Nova argues that [*12] “the clear, undisputed evidence from plaintiff’s own testimony is that she intended to assent and be bound by Nova Guide’s Waiver of Liability when she participated in the July 11, 2012 ATV tour.” Reply, docket #22 at 5. The Court must agree.

At her deposition, Soucy confirmed not only that she understood the concept of a waiver of liability, but also that she was familiar with such a document, as she had executed waivers in the past.

Q. Are you familiar with the concept of a waiver of liability?

A. Yes.

Q. Have you executed those type of documents in certain situations where you wanted to do an activity and it required a waiver?

A. Yes, yes.

Soucy Depo, 125: 1-7. Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. Id., 215: 4-8 and 217: 7-15. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.

Q. — did you understand before engaging in an activity such as ATV’ing, that you would typically execute a waiver of liability?

THE WITNESS: Yes.

Q. So that’s [*13] something you were familiar with. Did you at the time think that that was the document that he gave your mother?

A. I think, actually, the day before, when we got on that thing, Melissa and I filled something out.

Q. So you think that when you kind of took the safari trip —

A. Right.

Q. — where you were in a vehicle, that you actually filled something out?

A. We may have, yeah.

Q. You, yourself, as opposed to your mother?

A. Yes.

Q. Did you read it?

A. I don’t remember.

Q. Do you remember what it was or what it said?

A. No.

Q. And when you say “we,” do you mean you and all your sisters?

A. Melissa and I, separate from my mom.

Q. Did your mother also execute a document on the safari trip?

A. I believe so.

Q. And did Mr. Hilley, on the safari trip, explain what you were executing?

A. I don’t remember.

Q. Did you at the time think it was a waiver of liability?

A. Yeah. I think– and that’s why when we were in the car the next day, I just thought that kind of carried over or something.

Q. So when you were in the bus, going to do the ATV tour, you thought that what you had signed the day before carried over?

THE WITNESS: Right.

Q. But you generally understood that with respect to these type of activities, [*14] you did need to execute a waiver of liability?

THE WITNESS: Yes.

Soucy Depo, 143: 16 – 145: 20. Importantly, Soucy then participated in the ATV tour on July 11, 2012, which presumes that Soucy paid the required fee and Nova performed the requested service of guiding the tour. Soucy’s testimony does not appear to be vague. She assents to the proposition that she believed a waiver of liability she actually signed relating to one activity applied to another activity as well. She does not attempt to contradict that sworn testimony, so it was uncontroverted.

Accordingly, the Court concludes it is not disputed that Soucy paid for a commercial service, willingly received that service, and believed the waiver she signed on July 9, 2012 — in which she “assume[d] the risk of personal injury, death, and property damage … which may result from [her] participation … in … all terrain vehicle riding” and waived “any claims based on negligence or breach of warranty [she] might assert on [her] own behalf … against Nova Guides, Inc.” — was valid and necessary for her participation in the ATV tour on July 11, 2012.

However, an agreement requires intent to be bound by all parties. “A contract implied in [*15] fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” Winter v. Indus. Claim Appeals Office, 321 P.3d 609, 614, 2013 COA 126 (Colo. App. 2013) (citations omitted) (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement. Under the circumstances presented here, the Court will not infer such intention. See Celotex Corp., 477 U.S. at 323 (the moving party bears the initial responsibility of providing to the court the factual basis for its motion).

Accordingly, a genuine issue of material fact exists as to whether an agreement was formed by both parties on July 11, 2012 before Soucy participated in the ATV tour and, thus, summary judgment is [*16] improper.

CONCLUSION

Soucy’s deposition testimony reflects her conduct, beliefs and intent regarding whether she agreed to waive Nova’s liability for any negligence claims resulting from the ATV tour on July 11, 2012. No genuine issues of material fact arise from this testimony or any other evidence provided by Soucy as to whether her assent to such agreement existed. The Court must conclude, then, that the evidence demonstrates Soucy’s agreement to waive Nova’s liability for the injuries she suffered on July 11, 2012.

However, for an oral agreement to be enforceable, there must be mutual assent from both parties. The evidence proffered by the parties does not show that Nova intended to be bound by an agreement with Soucy to waive liability for the ATV tour on July 11, 2012. Because an issue as to this material fact exists, the Defendant’s Motion for Summary Judgment [filed May 28, 2015; docket #18] is denied.

Entered and dated at Denver, Colorado, this 20th day of July, 2015.

BY THE COURT:

/s/ Michael E. Hegarty

Michael E. Hegarty

United States Magistrate Judge


Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product.

The Passive-Retailer doctrine provides a defense for companies in the supply chain who have no hand, influence or part of the manufacturing process. The key word in the defense is the word passive.

Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

State: Utah, Court of Appeals of Utah

Plaintiff: Jamie Mcquivey

Defendant: Kim Yong Lung Industrial (KYL), which manufactured the helmet in Taiwan; Fulmer Helmets, which distributed the helmet throughout the American market; and White Knuckle Motor Sports, which sold the helmet

Plaintiff Claims: strict liability for defective design as well as negligence and failure to warn, Utah Product Liability Act

Defendant Defenses: Passive retailer defense

Holding: For the plaintiff

Year: 2014

The facts in this case are a little outside of the normal facts written about here. However, the defense in the case is rare and the opportunity to write about the case is important.

This case involves a helmet that failed during an ATV accident. The eight-year-old son of the plaintiff was riding an ATV when he crashed. His helmet cracked, and the helmet cut his face. The mother sued the Manufacturer, the importer distributor and the retailer.

The manufacturer and retailer were dismissed from the case leaving only the importer, Fulmer. The retailer was dismissed because “White Knuckle [retailer] had neither knowledge of potential defects nor influence over the helmet’s design, safety, or manufacturing.” The manufacturer was dismissed because it moved to dismiss for lack of personal jurisdiction.

The importer/defendant then moved to dismiss based on the theory that Fulmer was a passive retailer and could not be held liable for the defects in the helmet. The district court agreed and dismissed Fulmer. The plaintiff appealed that decision leading to this appeal.

Analysis: making sense of the law based on these facts.

The court first went through Utah Product liability law.

Under general principles of tort law, “as between an injured buyer of a product, and the seller of the product, the seller must bear the liability.”

Under Utah’s Product Liability Act, a “manufacturer or other initial seller” who sells an “unreasonably dangerous product” may be liable for resulting “personal injury, death, or property damage.”

Under Utah’s law, strict liability does not require proof of fault, only that the manufacturer sold a defective helmet.

The court then defined the Passive-Retailer Doctrine.

The passive-retailer doctrine creates an exception to strict liability under the Product Liability Act for “passive retailers”–sellers who do not “participate in the design, manufacture, engineering, testing, or assembly” of a product. Under this doctrine, “a passive retailer is not subject to a strict liability claim . . . where the manufacturer is a named party to the action.” The passive-retailer doctrine thus allows the trial court to dismiss a strict-liability claim against a codefendant when undisputed facts establish that no fact finder could, under principles of comparative fault, apportion fault to that codefendant. In this circumstance, “as long as [the actual manufacturer] is present in the suit, there remains no reason to require [a passive retailer] to incur the time and expense of defending” the action.

This is a defense for retailers, that has been adopted by a minority of states. It makes sense in today’s world of prepackaged products that are too complicated for the normal retailer to understand.

This decision found legislatures in Nebraska, Delaware, Idaho, Kansas, Iowa, Maryland, Minnesota, Missouri, North Dakota, Tennessee and Washington had adopted a variation of the doctrine. Courts in Texas, New York, and Oklahoma adopted  the doctrine.

In Utah, the doctrine only was used twice. However, in this case this court found the doctrine did not apply. The defendant Fulmer did more than merely import and sell the helmets.

The defendant’s name was on the helmets, and they were marketed as Fulmer’s helmets. Fulmer reviewed the design of the helmets, tested samples and made changes to the samples. Fulmer performed on-site visits to the manufacturing facility twice annually. Fulmer required the helmets to be manufactured to US DOT standards.

Finally, we note that Fulmer holds itself out to the public as the manufacturer of the helmets that bear its name. Under Second Restatement of Torts, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability, as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). “[O]ne puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.”

This level of participation was found by the court to be more than passive. The court based on this review found the defendant importer did not qualify for the defense of the Passive Retailer doctrine and sent the case back for trial.

So Now What?

The product liability laws in the US were developed to protect people. That worked when everyone in the supply chain from the manufacturer to the retailer could identify a defect and stop the sale of a defective product. That time ended when we moved from a “general store” to the current marketing system we use today.

If you are a retailer, you should investigate if the Passive-Retailer Doctrine applies to you in your state. Find out what you need to do to make sure you understand the doctrine and how you must work to be afforded its protection.

If you are a manufacturer, you need to understand who in your supply chain may be subject to this defense and keep that in mind when dealing with everyone in your supply chain to keep the defense viable.

What do you think? Leave a comment.

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Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

Mcquivey v. Fulmer Helmets, Inc., 2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

Jamie Mcquivey, Plaintiff and Appellant, v. Fulmer Helmets, Inc., Defendant and Appellee.

No. 20121056-CA

COURT OF APPEALS OF UTAH

2014 UT App 177; 335 P.3d 361; 766 Utah Adv. Rep. 32; 2014 Utah App. LEXIS 184; CCH Prod. Liab. Rep. P19,438

July 31, 2014, Filed

PRIOR HISTORY: [**1] Fourth District Court, Provo Department. The Honorable Claudia Laycock. No. 090403384.

COUNSEL: Mark R. Taylor, Henry N. Didier Jr., and P. Alexander Gillen, Attorneys for Appellant.

Julianne P. Blanch and Tsutomu L. Johnson, Attorneys for Appellee.

JUDGES: JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGE JOHN A. PEARCE concurred. JUDGE JAMES Z. DAVIS concurred in the result.

OPINION BY: J. FREDERIC VOROS JR.

OPINION

VOROS, Judge:

[*P1] Eight-year-old Conway Cook crashed an all-terrain vehicle while wearing a protective helmet. Instead of protecting him, the helmet cracked and injured his face. Conway’s mother sued various defendants on his behalf. The district court dismissed the claim against Fulmer Helmets, Inc. under the passive-retailer doctrine. We reverse and remand for further proceedings.

BACKGROUND 1

1 [HN1] When reviewing a district court’s rulings on a summary judgment motion, we recite all facts and fair inferences in the light most favorable to the nonmoving party. Poteet v. White, 2006 UT 63, ¶ 7, 147 P.3d 439.

[*P2] In 2008, Conway Cook drove his ATV down a dirt path, trailing his grandfather’s truck. Conway wore a Fulmer Blade AF-C1, a helmet designed for children. While driving along the path, Conway hit a shallow ditch. The impact ejected Conway and flipped [**2] the ATV. The helmet’s chinguard snapped on impact, and the sharp edge of the now-serrated plastic guard cut deeply into Conway’s face. His injuries were serious and will require lifelong care and future surgeries.

[*P3] On Conway’s behalf, his mother, Jamie McQuivey, sued three parties: Kim Yong Lung Industrial (KYL), which manufactured the helmet in Taiwan; Fulmer Helmets, which distributed the helmet throughout the American market; and White Knuckle Motor Sports, which sold the helmet to Conway’s father. Against Fulmer, McQuivey alleged strict liability for defective design as well as negligence and failure to warn.

[*P4] The district court dismissed McQuivey’s claims against both KYL and White Knuckle. McQuivey stipulated to White Knuckle’s dismissal because the evidence showed that White Knuckle had neither knowledge of potential defects nor influence over the helmet’s design, safety, or manufacturing. KYL moved to dismiss the claims against it for lack of personal jurisdiction. Fulmer and McQuivey did not oppose the motion, and the district court granted it, leaving Fulmer as the lone defendant.

[*P5] Fulmer moved for summary judgment. Fulmer argued that, as a passive retailer, it could not be [**3] held liable for defects in the helmet. The district court agreed and dismissed all claims against Fulmer, terminating the litigation.

ISSUE AND STANDARD OF REVIEW

[*P6] McQuivey contends that the district court erred in granting summary judgment for Fulmer on the ground that it qualifies as a passive retailer. [HN2] We review a district court’s “legal conclusions and ultimate grant or denial of summary judgment for correctness . . . and view[] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted). Furthermore, “[t]he determination of whether a passive seller of a product can be held strictly liable under the Utah Liability Reform Act . . . is based on the trial court’s interpretation of a statute, which we review for correctness without deference to the trial court’s conclusions.” Yirak v. Dan’s Super Mkts., Inc., 2008 UT App 210, ¶ 3, 188 P.3d 487 (citation and internal quotation marks omitted).

ANALYSIS

[*P7] McQuivey contends that the district court improperly applied the passive-retailer doctrine to Fulmer and thus erred in dismissing Fulmer from the case. She argues that Fulmer does not qualify as a passive retailer because “[Fulmer] is not passive in the design, manufacturing, [**4] and testing of the helmets bearing its name.” Fulmer responds that it qualifies as a passive retailer because it “does not design or manufacture helmets.”

[*P8] [HN3] Under general principles of tort law, “as between an injured buyer of a product, and the seller of the product, the seller must bear the liability.” Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 15, 94 P.3d 301. Utah has long recognized a cause of action against the seller of defective products. Hahn v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). Under Utah’s Product Liability Act, a “manufacturer or other initial seller” who sells an “unreasonably dangerous product” may be liable for resulting “personal injury, death, or property damage.” Utah Code Ann. § 78B-6-703(1) (LexisNexis 2008). And under the Second Restatement of Torts, section 402A, the commercial seller of a defective product may be held strictly liable–liable without proof of fault–for harm caused by the product:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Restatement (Second) of Torts § 402A (1965) expressly [**5] adopted in Hahn, 601 P.2d at 158. Thus, because “strict liability does not require an examination of a party’s fault,” a manufacturer or other initial seller can be held liable for a defective product regardless of its degree of fault. Sanns, 2004 UT App 203, ¶ 14 n.5, 94 P.3d 301. However, these rules exist in tension with another feature of Utah tort law: comparative fault.

[*P9] Comparative fault became the law of Utah in 1986. Before that time, Utah applied the common-law rule of joint-and-several liability. Under joint-and-several liability, “a tortfeasor was potentially liable for the entire amount of a plaintiff’s damages, irrespective of what proportion of fault was actually attributable to that individual tortfeasor as opposed to another joint tortfeasor.” National Serv. Indus. v. B.W. Norton Mfg. Co., 937 P.2d 551, 554 (Utah Ct. App. 1997). In 1986, the Utah Legislature enacted the Liability Reform Act. See Utah Code Ann. § 78B-5-820(1) (LexisNexis 2008). [HN4] The Act replaced the rule of joint-and-several tort liability with a rule of comparative fault. A plaintiff’s “recovery of damages under the Product Liability Act is proportionate to the percentage of fault attributable to each defendant.” Yirak, 2008 UT App 210, ¶ 4, 188 P.3d 487. The Act defines “fault” to include strict liability. Utah Code Ann. § 78B-5-817(2) (LexisNexis 2008). Consequently, a plaintiff in a products-liability case may recover from each defendant only [**6] in proportion to that defendant’s fault (including strict liability).2

2 We previously noted that the legislature’s “inclusion of ‘strict liability’ in defining ‘fault’ is confusing and somewhat problematic because unlike negligence, strict liability does not require an examination of a party’s fault.” Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 14 n.5, 94 P.3d 301. “The use of strict liability in this statutory definition should be viewed only as a cause of action subject to the [Liability Reform Act], rather than changing the traditional use of the term fault to somehow include strict liability, a liability concept that is unconcerned with fault in the usual sense of culpability.” Id.

[*P10] Tension inheres between the principles of Utah’s comparative-fault statute and Utah’s products-liability statute because together they require a finder of fact to apportion relative fault to a codefendant whose liability does not depend on fault as commonly understood in tort law. In response to this tension, this court devised the passive-retailer doctrine.

[*P11] [HN5] The passive-retailer doctrine creates an exception to strict liability under the Product Liability Act for “passive retailers”–sellers who do not “participate in the design, manufacture, engineering, testing, or [**7] assembly” of a product. Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301. Under this doctrine, “a passive retailer is not subject to a strict liability claim . . . where the manufacturer is a named party to the action.” Yirak v. Dan’s Super Mkts. Inc., 2008 UT App 210, ¶ 5, 188 P.3d 487. The passive-retailer doctrine thus allows the trial court to dismiss a strict-liability claim against a codefendant when undisputed facts establish that no fact finder could, under principles of comparative fault, apportion fault to that codefendant. In this circumstance, “as long as [the actual manufacturer] is present in the suit, there remains no reason to require [a passive retailer] to incur the time and expense of defending” the action. Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301.3

3 Other jurisdictions have sought to protect passive sellers from the effects of section 402A in other ways or left them unprotected. Some jurisdictions that adopted section 402A sought to protect passive sellers with legislation prohibiting a strict-liability suit against a seller unless the seller either manufactures the product or participates in the manufacture of the product. See, e.g., Ga. Code Ann. § 51-1-11.1 (2000); Ind. Code § 34-20-2-3 (2008); Neb. Rev. Stat. § 25-21,181 (2008). Other jurisdictions have enacted legislation prohibiting strict-liability suits against passive sellers unless no remedy exists against the manufacturer. See, e.g., Del. Code Ann. tit. 18, § 7001 (1999); Idaho Code Ann. § 6-1407(4) (2010); [**8] Iowa Code § 613.18 (West 1999); Kan. Stat. Ann. § 60-3306 (Supp. 2012); Ky. Rev. Stat. Ann. § 411.340 (LexisNexis 2005); Md. Code Ann., Cts. & Jud. Proc. § 5-405 (LexisNexis 2013); Minn. Stat. Ann. § 544.41 (West 2010); Mo. Ann. Stat. § 537.762 (West 2008); N.C. Gen. Stat. Ann. § 99B-2 (2013); N.D. Cent. Code § 28-01.3-04 (2006); Tenn. Code Ann. § 29-28-106 (Supp. 2013); Wash. Rev. Code Ann. § 7-72.040(2) (West 2007). And a significant number of jurisdictions that adopted section 402A have not enacted any legislation to protect passive sellers and continue to subject passive sellers to strict liability. See, e.g., Clark v. Williamson, 129 F. Supp. 2d 956, 959 (S.D. Miss. 2000) (applying Mississippi law and holding that a passive retailer could be strictly liable in products-liability suit); Oser v. Wal-Mart Stores, Inc., 951 F. Supp. 115, 119 (S.D. Tex. 1996) (holding that a plaintiff injured by a defective shopping bag can sue the passive retailer); Nichols v. Agway, Inc., 280 A.D.2d 889, 720 N.Y.S.2d 691, 692 (N.Y. App. Div. 1994) (confirming that retailers are subject to strict-liability suits but dismissing on other grounds); Honeywell v. GADA Builders, Inc., 2012 OK CIV APP 11, 271 P.3d 88, 95 (Okla. Civ. App. 2011) (“The rationale for imposing strict liability on retailers and distributors is founded upon the public interests in human safety. . . .”).

[*P12] This court has applied the passive-retailer doctrine only twice.4 In Sanns, a van in which Sanns was a passenger rolled several times. Id. ¶ 2. Sanns sued both the manufacturer–Ford Motor Company–and the retailer– Butterfield Ford. Id. ¶ 3. We held that Butterfield Ford qualified as a passive retailer because it “did not participate in the design, manufacture, engineering, testing, or assembly of the van.” Id. ¶ 21. [**9] As a result, we concluded, “The strict liability ‘fault’ in this case, if any, lies with the manufacturer, not with Butterfield Ford, the passive retailer.” Id. Consequently, we held that “the trial court was correct to dismiss Butterfield Ford.” Id.

4 The Utah Supreme Court has yet to address or apply the passive-retailer doctrine.

[*P13] This court again applied the passive-retailer doctrine in Yirak, 2008 UT App 210, 188 P.3d 487. After discovering a piece of glass in her prepackaged salad, Yirak sued both the seller–Dan’s Super Markets–and the manufacturer–Dole. Id. ¶¶ 2, 5 n.3. However, Dan’s submitted undisputed evidence that it did not “manufacture, design, repackage, label, or inspect the prepackaged salads supplied by Dole.” Id. ¶ 7. Consequently, we held that Dan’s qualified as a passive retailer. Id. ¶ 8.

[*P14] Notably, the passive retailers in Sanns and Yirak did not Participate in the creation of the defective or unreasonably dangerous products at issue in those cases–they did not participate in the products’ design, manufacture, or testing. See Sanns v. Butterfield Ford, 2004 UT App 203, ¶ 21, 94 P.3d 301; Yirak, 2008 UT App 210, ¶ 7, 188 P.3d 487. They were thus not “in a position to eliminate the unsafe character of the product and prevent the loss,” one of the rationales for imposing strict liability. See Hebel v. Sherman Equip., 92 Ill. 2d 368, 442 N.E.2d 199, 205, 65 Ill. Dec. 888 (Ill. 1982).

[*P15] In contrast, [**10] McQuivey presented evidence demonstrating that Fulmer did participate in the manufacture, design, and testing of the helmets that bear its name. First, Fulmer participates in helmet design. Fulmer receives sample helmets from KYL to ensure that they fit properly. One of Fulmer’s representatives stated, “[W]e might have to tell [KYL] this is tight here or loose here and they change something about the comfort padding perhaps to–to adjust the way it fits. But we work through that.” Fulmer also designs the helmets’ graphics and tags.5 Though relatively slight, this degree of involvement in helmet design distinguishes Fulmer from Dan’s and Butterfield Ford, who had no role in the design of the products they sold.

5 Fulmer’s tags contain explicit warnings, instructions for sizing, and a directive stating, “If helmet experiences a severe blow, return it to the manufacturer for competent inspection or destroy and replace it.” Below this direction, in all capital letters, the tag reads, “FULMER HELMETS, INC.”

[*P16] Fulmer also participates in the helmets’ manufacture. Fulmer performs on-site visits to KYL’s helmet factory twice annually. Fulmer examines KYL’s quality-control procedures. Furthermore, Fulmer [**11] requires that KYL manufacture its helmets in compliance with United States Department of Transportation standards, “100 percent, every helmet, all the time.” This level of involvement constitutes “participation” in the manufacturing process. See Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301.

[*P17] Fulmer also participates in the helmets’ testing. Fulmer requires that KYL test all Fulmer helmets, and Fulmer itself has the helmets tested “from time to time.” As mentioned above, Fulmer test-fits helmets and then instructs KYL to make changes accordingly. Furthermore, Fulmer has had helmets tested “both in KYL as well as in labs in the United States” to ensure that all helmets comply with U.S. standards.

[*P18] Finally, we note that Fulmer holds itself out to the public as the manufacturer of the helmets that bear its name. Under Second Restatement of Torts, “[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965). “[O]ne puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark.” Id., § 400 cmt. d. Courts typically refer to this as the “apparent-manufacturer doctrine.” Long v. United States Brass Corp., 333 F. Supp. 2d 999, 1002 (D. Colo. 2004) (citing Yoder v. Honeywell Inc., 104 F.3d 1215, 1223 (10th Cir. 1997)). “The primary rationale for imposing [**12] liability on the apparent manufacturer of a defective product is that it induced the purchasing public to believe that it is the actual manufacturer, and . . . [thus] to purchase the product in reliance on the apparent manufacturer’s reputation and skill in making it.” Hebel, 442 N.E.2d at 203 (emphasis omitted). Although Utah has not yet addressed the question, most jurisdictions to consider the apparent-manufacturer doctrine have adopted it.6

6 See, e.g., Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir. 1962) (citing Highland Pharmacy, Inc. v. White, 144 Va. 106, 131 S.E. 198 (Va. 1926)); Davis v. United States Gauge, 844 F. Supp. 1443, 1446 (D. Kan. 1994); Moody v. Sears, Roebuck & Co., 324 F. Supp. 844, 846 (S.D. Ga. 1971) superseded by statute as stated in Freeman v. United Cities Propane Gas, Inc., 807 F. Supp. 1533, 1539-40 (M.D. Ga. 1992); Sears, Roebuck & Co. v. Morris, 273 Ala. 218, 136 So. 2d 883, 885 (Ala. 1961); Cravens, Dargan & Co. v. Pacific Indem. Co., 29 Cal. App. 3d 594, 105 Cal. Rptr. 607, 611 (Ct. App. 1972); King v. Douglas Aircraft Co., 159 So.2d 108, 110 (Fla. Dist. Ct. App.1963); Dudley Sports Co. v. Schmitt, 151 Ind. App. 217, 279 N.E.2d 266, 273 (Ind. Ct. App. 1972); Tice v. Wilmington Chem. Corp., 259 Iowa 27, 141 N.W.2d 616, 628 (Iowa 1966); Penn v. Inferno Mfg. Corp., 199 So.2d 210, 215 (La. Ct. App. 1967); Coca Cola Bottling Co. v. Reeves, 486 So.2d 374, 378 (Miss. 1986) superseded by statute as stated in Turnage v. Ford Motor Co., 260 F. Supp. 2d 722, 727 (S.D. Ind. 2003)); Slavin v. Francis H. Leggett & Co., 114 N.J.L. 421, 177 A. 120, 121 (N.J. 1935) aff’d, 117 N.J.L. 101, 186 A. 832 (N.J. 1936)); Andujar v. Sears Roebuck & Co., 193 A.D.2d 415, 597 N.Y.S.2d 78, 78 (App. Div. 1993) (citing Commissioners of State Ins. Fund v. City Chem. Corp., 290 N.Y. 64, 48 N.E.2d 262, 265 (N.Y. 1943)); Warzynski v. Empire Comfort Sys., Inc., 102 N.C. App. 222, 401 S.E.2d 801, 803-04 (N.C. Ct. App. 1991); Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593, 599 (Pa. 1968); Sears, Roebuck & Co. v. Black, 708 S.W.2d 925, 928 (Tex. App. 1986); Wojciuk v. United States Rubber Co., 13 Wis. 2d 173, 108 N.W.2d 149, 152-53 (Wis. 1961).

[*P19] As McQuivey has not urged us to adopt the apparent manufacturer doctrine here, we reserve that question for another day. We note, however, that Fulmer distributed the Blade AF-C1 helmet under its own name; typically describes itself as the “manufacturer” of Fulmer helmets on equipment safety reports filed with the National Highway Traffic Safety Administration; and puts its name on tags inside its helmets, certifying that they meet the applicable safety standards.

[*P20] Even without resort to the apparent-manufacturer doctrine, we conclude that the district court erred in granting summary judgment for Fulmer as a passive retailer. See [**13] Sanns, 2004 UT App 203, ¶ 21, 94 P.3d 301. Although KYL principally conducted the manufacturing, design, and testing of the helmets, [HN6] the passive-retailer doctrine does not ask whose role in manufacturing a defective product was the greatest; rather it asks whether a party “participate[d] in the design, manufacture, engineering, testing, or assembly of” the product. Id. This follows from the passive-retailer doctrine’s rationale, which is to dismiss codefendants to whom the finder of fact will, should the matter go to trial, inevitably apportion no fault.7

7 McQuivey also argues that the court erred in granting summary judgment in Fulmer’s favor on two other grounds: first, that “the passive-retailer doctrine is inappropriate” here because “the alleged manufacturer was never a proper party to this case,” and second, that “even if the doctrine otherwise applied, only the strict-liability claims against Fulmer should be dismissed.” Because we determine that the court erred in ruling that Fulmer qualifies as a passive retailer, we do not address these arguments.

CONCLUSION

[*P21] We reverse the district court’s judgment of dismissal and remand the case for further proceedings.


“Sportsmen” bill working through congress would allow ATVs in Wilderness

ATVsComing to Your Favorite Wilderness Area

Thousand Island Lake (2997m) and Banner Peak (...

May 29, 2012

The misleadingly-named “Sportsmen’s Heritage Act” has wilderness-busting
provisions that could be coming to any and all of America’s wilderness
areas.

“It’s possibly the biggest threat to this nation’s wilderness areas since
the Wilderness Act was passed in 1964,” says Tom Martin, Co-Director of
River Runners for Wilderness, “even long time wilderness defenders who
thought they’d seen it all are shocked.”

HR4089 is a combination of 4 previous bills. Although there are many
debatable elements, the worst allows what were previously illegal activities
to now occur in all areas managed as wilderness under the National Park
Service, the Forest Service, and all of the nation’s Federal land agencies.

Among activities that could be allowed are ATV use, new road construction,
mining, logging and the construction of fixed structures. In fact, the most
dangerous element of this bill is that it gives managers a blank check to
allow any activities they construe as beneficial to sportsmen.

The bill has passed the House of Representatives and a Senate Companion Bill
S2066 has been introduced with supporters such as the National Rifle
Association and sports industry groups urging a quick passage.

The Congressional Research Service (CRS), a branch of the Library of
Congress that provides in depth analysis to members of Congress and others,
outlined the threats in a recent review of the proposal. The CRS noted that
the bill’s “..language could be construed as opening wilderness areas to
virtually any activity related to hunting and fishing, even if otherwise
inconsistent with wilderness values. Despite the Wilderness Act’s explicit
ban on temporary and permanent roads, if H.R. 4089 were passed, roads
arguably could be constructed in wilderness areas.”

The report also noted that “.while it appears that timber harvest could be
allowed, it would seem difficult to harvest timber without roads or
machines.”

The entire CRS’ brief (4 page) memo is on the River Runners for Wilderness
website at http://rrfw.org/sites/default/files/CRSreport.pdf

The wilderness destroying language in this bill could easily be omitted
before final passage and we urge you to take action to insist that this is
done:

Contact your state’s Senators and ask that they not support S2066 and to
protect all provisions of The Wilderness Act.

You are also encouraged to contact lobbying supporters of HR4089 & S2066,
such as the National Rifle Association at their website, particularly if you
are a member: https://www.nraila.org/secure/contact-us.aspx and let them
know that you support the Wilderness Act as written.

You are also encouraged to write a letter to the editor of your local
newspaper. National media has largely ignored these bills and you could be
instrumental in raising awareness of the threat.

To learn more about the threats posed by this legislation, visit:
Wilderness Watch’s analysis:
http://www.wildernesswatch.org/pdf/HR%204089%20Analysis–WW.pdf.
Other advocacy group sites:
http://wilderness.org/content/sneak-attack-wilderness and
http://conservationlands.org/time-to-stop-hr-4089-in-its-tracks.

Surveys show that wilderness enjoys very broad support by our country’s
citizens and should be protected. River Runners for Wilderness will keep you
apprised of this looming disaster for our country’s precious wilderness
lands.

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Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832

Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832
Taylor Wycoff, Plaintiff-Appellee and Cross-Appellant, and American Medical Security Life Insurance Company, a Wisconsin insurance company, Intervenor-Appellee and Cross-Appellant, v. Grace Community Church of the Assemblies of God, a Colorado nonprofit corporation, Defendant-Appellant and Cross-Appellee.
Court of Appeals Nos. 09CA1151, 09CA1200 & 09CA1222
COURT OF APPEALS OF COLORADO, DIVISION SIX
2010 Colo. App. LEXIS 1832
December 9, 2010, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
SUBSEQUENT HISTORY: Related proceeding at Wycoff v. Seventh Day Adventist Ass’n of Colo., 2010 Colo. App. LEXIS 1826 (Colo. Ct. App., Dec. 9, 2010)
PRIOR HISTORY: [*1]
Boulder County District Court No. 07CV35. Honorable M. Gwyneth Whalen, Judge.
DISPOSITION: JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS.
COUNSEL: Wilcox & Ogden, P.C., Ralph Ogden, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
David Lichtenstein, Denver, Colorado, for Intervenor-Appellee and Cross-Appellant.
Cooper & Clough, P.C., Paul D. Cooper, Jeremy L. Swift, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.
JUDGES: Opinion by JUDGE CONNELLY. Carparelli, J., concurs. Furman, J., dissents.
OPINION BY: CONNELLY
OPINION
Plaintiff, Taylor Wycoff, was seriously injured at a winter event held by defendant, Grace Community Church (Grace). Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer), sued Grace and another defendant. Claims against that other defendant are addressed in Wycoff v. Seventh Day Adventist Ass’n, P.3d , 2010 Colo. App. LEXIS 1826 (Colo. App. Nos. 09CA1034 & 09CA1065, Dec. 9, 2010).
The jury returned verdicts against Grace totaling more than $ 4 million. The court reduced the total to $ 2 million (the limits of Grace’s insurance), awarding some $ 1.775 million to plaintiff and $ 225,000 to insurer. After prejudgment interest and costs, the court [*2] entered judgment of $ 2.6 million for plaintiff and $ 324,000 for insurer. We generally affirm but vacate the judgment, and we order the trial court to enter judgment in the higher amounts unreduced by any insurance limits.
I. Background
Plaintiff was seventeen years old at the time of the accident. Though not a church member, she was one of sixty youths to attend a three-day, two-night event that Grace called “Winterama 2005.”
Grace contracted with Seventh Day Adventist Association of Colorado (SDA) to hold the event at Glacier View Ranch, in Ward, Colorado. Grace paid SDA for rooms, meals, and use of the ranch.
Plaintiff’s father paid Grace $ 40 for plaintiff to attend the event. Grace states that plaintiff did not pay more because it awarded her a “partial scholarship.” Plaintiff and her mother signed Grace’s one-page “Registration and information” form, which Grace contends released the personal injury claims now at issue.
After arriving and checking in at the ranch, plaintiff participated in church-sponsored activities. One activity was riding an inner tube tied to an all-terrain vehicle (ATV) driven around a frozen lake. This activity had been conducted in past years by Grace, and [*3] also by SDA, without incident.
A large boulder was embedded in the lake some thirty-five feet from shore. A Grace chaperone, accompanied by another man, drove the ATV towing youth participants around the frozen lake. Plaintiff got on an inner tube, and the chaperone began towing her. On plaintiff’s second loop around the lake, the Grace chaperone drove the ATV between the boulder and shoreline. Plaintiff’s inner tube, still tied to the ATV, veered off and crashed into the boulder.
The crash broke plaintiff’s back. She was rushed to intensive care and was hospitalized for several weeks. She suffered loss of bowel and bladder control, loss of vaginal sensation, and numbness in both legs making it difficult for her to walk and unable to run, bend, or squat.
II. Enforceability of the Alleged Release
A. Background
The purported release was in a one-page “Registration and information” form. It consisted of the third sentence (emphasis not in the original) in the following paragraph:
I give permission for my child to participate in [Grace’s] Winterama 2005 and all activities associated with it. I further give consent for any medical treatment necessary to be given to my child in case of injury [*4] or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.
The form was the subject of trial testimony after the court denied Grace’s motion for summary judgment. Plaintiff testified that she knew the activities would include riding on an ATV-towed inner tube but that her mother did not know this. The trial court denied Grace’s C.R.C.P. 50 motion for directed verdict at the close of plaintiff’s case-in-chief, ruling that the jury could find either that plaintiff’s mother had not made an informed release or alternatively that Grace had acted in a reckless manner not covered by any release.
Grace did not call plaintiff’s mother to testify in the defense case. At the close of all the evidence, and outside the jury’s presence, the parties discussed whether and how the jury should be instructed on the purported release. The trial court, for reasons not reflected in the record, ruled as a matter of law that the permission slip did not release Grace. It instructed the jury that the purported release was out of the case and should no [*5] longer be considered.
B. Overview of Exculpatory Clauses Affecting Minors
[HN1] The validity of exculpatory clauses purporting to release or waive future negligence claims is governed by four factors set out in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). Usually, the issue turns on the final factor: “whether the intention of the parties is expressed in clear and unambiguous language.” Id.
In 2002, our supreme court held as a matter of public policy that parents cannot prospectively waive liability on behalf of minor children. Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002). The next year, [HN2] the General Assembly superseded Cooper by enacting a statute allowing parents to “release or waive the child’s prospective claim for negligence.” § 13-22-107(3), C.R.S. 2010.
The statute superseding Cooper declared that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities. § 13-22-107(1)(a)(I)-(V), C.R.S. 2010. It added that “[s]o long [*6] as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13-22-107(1)(a)(V). But it further provided that the statute does not permit a parent to waive a child’s prospective claim for “willful and wanton, … reckless, … [or] grossly negligent” acts or omissions. § 13-22-107(4).
C. Standard of Review
[HN3] The relevant facts are undisputed, and our review is de novo. See Wolf Ranch, LLC v. City of Colorado Springs, 220 P.3d 559, 563 (Colo. 2009) (de novo review of statutory issues); Jones, 623 P.2d at 376 [HN4] (de novo review of validity of exculpatory clause prospectively releasing liability claims). Thus, while the record does not reflect the trial court’s reasoning, we are able independently to review the form to determine whether it was a legally effective release.
D. Analysis
The statute does not elucidate what is necessary to render a parent’s decision to release a child’s prospective claims “voluntary and informed,” § 13-22-107(1)(a)(V). Grace contends this statutory language simply adopts the Jones standards for adults’ prospective releases of their own claims. We disagree.
The statute [*7] uses language not found in Jones or its progeny. The supreme court in Jones noted that the release there did not “fall within the category of agreements affecting the public interest.” 623 P.2d at 377. The inquiry relevant to this case — “whether the intention of the parties is expressed in clear and unambiguous language,” id. at 376 — does not expressly require that the decision to release one’s own prospective claims be an “informed” one. [HN5] We presume the legislature was aware of case law in this area, see Specialty Restaurants Corp. v. Nelson, 231 P.3d 393, 403-04 (Colo. 2010), and that its use of a new term was intended to have some significance. Thus, the statutory requirement that the parental decision be an “informed” one must mean something more than that, as already required by Jones, the form’s language be sufficiently clear to manifest intent to release liability.
We need not set forth in this case precisely how much information is required for a parental release to satisfy the statute. An “informed” decision — whether involving a legal or medical consent — typically means the “agreement to allow something to happen, [was] made with full knowledge of the risks involved [*8] and the alternatives.” Bryan A. Garner, Black’s Law Dictionary 346 (9th ed. 2009) (defining “informed consent”); cf. People v. Maestas, 199 P.3d 713, 717 & n.9 (Colo. 2009) (“informed consent” for decisions waiving conflict-free counsel); Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571, 587 (Colo. 2004) (“informed consent” for medical decisions). In the present context, however, the legislature allowed parental releases “to encourage the affordability and availability of youth activities in this state.” § 13-22-107(1)(a)(VI), C.R.S. 2010. Arguably, this legislative aim could be undercut if courts required the same level of information to release a claim as to consent to a medical procedure.
There is no information in Grace’s one-page registration form describing the event activities, much less their associated risks. Stating that the children would participate in “Winterama 2005 and all activities associated with it” does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.
We are not persuaded by Grace’s argument that it was denied an opportunity to offer evidence — [*9] in particular, testimony of plaintiff’s mother — that the parental waiver was informed. We will assume for purposes of this case that a facially deficient exculpatory contract could be cured by extrinsic evidence. But cf. Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 n.2 (10th Cir. 1997) (noting “some dispute in the Colorado case law about whether a plaintiff’s experience or lack of experience should be considered when determining the ambiguity of a release”). Even so, the trial court did not preclude Grace from offering any evidence bearing on the validity of the purported release. And it took this issue away from the jury only after the close of all the evidence. Grace thus could have called plaintiff’s mother (whom it had listed as a potential trial witness), but it chose not to do so.
Finally, Grace’s clause does not pass muster even under Jones. [HN6] Such clauses “must be closely scrutinized,” Jones, 623 P.2d at 376, because they are “disfavored.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004); accord Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). A release need not contain any magic words to be valid; in particular, it need not specifically [*10] refer to waiver of “negligence” claims. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784-85 (Colo. 1989). But, in every Colorado Supreme Court case upholding an exculpatory clause, the clause contained some reference to waiving personal injury claims based on the activity being engaged in. See, e.g., Chadwick, 100 P.3d at 468 (release detailed risks of hunting trip with animals and participant agreed to “‘RELEASE [outfitter] FROM ANY LEGAL LIABILITY … for any injury or death caused by or resulting from” participation in hunt); Heil Valley Ranch, 784 P.2d at 782 (release form stated that riding horse involved inherent risks, and participant “EXPRESSLY ASSUMES SUCH RISK AND WAIVES ANY CLAIM HE SHE MIGHT STATE AGAINST THE STABLES AS A RESULT OF PHYSICAL INJURY INCURRED IN SAID ACTIVITIES”); Jones, 623 P.2d at 372 (skydiving plaintiff released company “from any and all liability, claims, demands or actions or causes of action whatsoever arising out of any damage, loss or injury” resulting from “negligence … or from some other cause”).
Grace’s form made no reference to the relevant activity or to waiving personal injury claims. The operative sentence (the third one in a paragraph) states [*11] only that plaintiff will not hold Grace “responsible for any liability which may result from participation.” Surrounding sentences address other issues: the first gives permission to attend; the second consents to medical treatment; and the fourth agrees to pick up disobedient children.
Grace contends its “waiver included liability for ‘any’ injuries related to ‘all activities’ conducted at Winterama 2005.” But the form does not say this. And nowhere does the form provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. The form is legally insufficient to release plaintiff’s personal injury claims.
III. Issues Under the Premises Liability Act
Grace contends the court made two errors under the Premises Liability Act, § 13-21-115, C.R.S. 2010. First, Grace denies being a “landowner” covered by the Act. Second, it contends that plaintiff was a “licensee” rather than an “invitee.” Because the facts relevant to these issues are undisputed, our review is de novo. Lakeview Associates, Ltd. v. Maes, 907 P.2d 580, 583-84 (Colo. 1995).
[HN7] The Act provides the sole remedy against landowners for injuries on their property. Vigil v. Franklin, 103 P.3d 322, 328-29 (Colo. 2004). [*12] A landowner’s duties turn on a trial court’s determination of whether the plaintiff was an “invitee,” a “licensee,” or a “trespasser.” § 13-21-115(3) & (4), C.R.S. 2010. The greatest duty is owed to an “invitee”: a landowner must “exercise reasonable care” to protect such a person from dangers of which the landowner knew or should have known. Lombard v. Colorado Outdoor Educ. Center, Inc., 187 P.3d 565, 575 (Colo. 2008) (construing § 13-21-115(3)(c)(I)). In contrast, a “licensee” is owed lesser, and a “trespasser” owed the least, duties. See Vigil, 103 P.3d at 328.
A. Grace was a “Landowner”
[HN8] The Act’s definition of a “landowner” is broader than the term might suggest. See § 13-21-115(1), C.R.S. 2010 (“‘landowner’ includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property”). Thus, a “person need not hold title to the property to be considered a ‘landowner.'” Burbach v. Canwest Investments, LLC, 224 P.3d 437, 441 (Colo. App. 2009) (citing Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1219 (Colo. 2002)).
It [*13] is not apparent why Grace seeks to avoid landowner status under the Act. The Act, meant to “protect landowners,” § 13-21-115(1.5)(e), C.R.S. 2010 (emphasis added), eliminates common law negligence claims while imposing only a duty of reasonable care toward invitees and even lesser duties toward licensees and trespassers. See Vigil, 103 P.3d at 328-29. If Grace were correct that it was not covered by the Act, it still would have owed plaintiff a duty of reasonable care and could not argue that plaintiff was a mere licensee owed only lesser duties under the Act.
In any event, we have little difficulty concluding that Grace was a landowner as defined by the Act. A landowner includes one “legally responsible … for the activities conducted … on real property.” § 13-21-115(1). This definition, which covers one “who is legally conducting an activity on the property,” Pierson, 48 P.3d at 1221, plainly encompassed Grace. It was clear, from Grace’s reservations agreement and understandings with SDA, that Grace was authorized to conduct (if not principally responsible for conducting) activities involving its group on the ranch property.
Grace’s arguments against this straightforward conclusion [*14] are unpersuasive. Its argument that SDA owned the property fails, because the Act is not limited to property owners. See Burbach, 224 P.3d at 441.
Grace further argues that it was “only present on the property for a short time” and thus “in a much worse position than SDA to know of the conditions of the property, or to know whether a particular activity would be dangerous on the property.” But [HN9] the Act is not limited to those in exclusive possession of land, see Pierson, 48 P.3d at 1220, and the Act expressly contemplates that there may be multiple landowners in a case. See § 13-21-115(4). There accordingly is no need for a binary choice as to which entity, as between Grace and SDA, was better able to protect plaintiff against injury. If Grace in fact had no reason to know of the relevant danger, that could provide a factual defense at trial rather than an exemption from the Act’s coverage.
Grace finally suggests that treating it as a landowner would lead to absurd results because everyone engaged in activities on the ranch, including plaintiff herself, would also be a landowner. The instant appeal does not present any issue regarding who, other than Grace, might have been a landowner. [*15] We note, however, that the Act’s definition of a landowner does not extend to everyone lawfully participating in activities on land; rather, it covers those “legally responsible … for the activities conducted” on land. § 13-21-115(1). It is doubtful that a mere participant such as plaintiff was “legally responsible” for the activities conducted at the ranch. Regardless, we are convinced there is nothing unfair, much less absurd, in applying the Act to Grace — an entity that indisputably was responsible for the ATV activity conducted on the ranch.
B. Plaintiff was an “Invitee” rather than “Licensee”
Grace’s contention that plaintiff was not an “invitee” but was merely a “licensee” affects the duty owed by Grace to plaintiff. If plaintiff was an invitee, then the trial court correctly instructed the jury that Grace had to use reasonable care to protect against dangers of which it knew or reasonably should have known. Lombard, 187 P.3d at 570-71, 575. In contrast, had plaintiff been a mere licensee, Grace’s duties would have been limited to actually known dangers. See Vigil, 103 P.3d at 328. We conclude that plaintiff was an invitee and, therefore, that the trial court correctly instructed [*16] the jury regarding Grace’s obligations toward her.
[HN10] An “invitee” is one who enters or remains on another’s land “to transact business in which the parties are mutually interested or … in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.” § 13-21-115(5)(a), C.R.S. 2010. [HN11] A “licensee” is one who enters or remains on another’s land “for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent.” § 13-21-115(5)(b). The statute expressly provides that the latter category “includes a social guest.” Id.
[HN12] The principal distinction between an “invitee” and a “licensee” turns on whether that person’s presence on the land was affirmatively invited or merely permitted. The Second Restatement distinguishes an “invitation” from “mere permission” as follows: “an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so.” Restatement (Second) of Torts § 332 cmt. b (1965).
The Second Restatement [*17] gives examples of licensees whose presence is merely permitted rather than encouraged. “Examples of licensees” include those “taking short cuts across land with the consent of the possessor,” “[l]oafers, loiterers, and those who enter only to get out of the weather, with permission to do so,” and “[s]pectators and sightseers not in any way encouraged to come.” Restatement (Second) of Torts § 330 reporter’s notes (1965).
Here, Grace affirmatively encouraged, and did not simply permit, the presence of plaintiff and other youth attendees. Grace sponsored the event, secured access to the land and lodgings, and arranged for meals. It took affirmative steps — including driving plaintiff and the others to the ranch — to facilitate their attendance and participation. To further encourage plaintiff’s attendance, Grace provided her with what it describes as a “partial scholarship.”
Simply put, Grace invited plaintiff and the other youths to attend its organized event. Grace’s actions demonstrate that Grace was affirmatively interested in having youths attend the event. Plaintiff’s situation was not comparable to that of a licensee merely permitted but not invited to be on another’s land.
[HN13] Only [*18] one type of licensee is categorically deemed not to be an invitee despite having affirmatively been encouraged to enter another’s land: a “social guest.” See § 13-21-115(5)(b). As one treatise puts it, such a guest “is an invitee who is not an invitee.” 5 Harper, Gray, and James on Torts § 27.11, at 234 (3d ed. 2008).
We are not persuaded by Grace’s contention that plaintiff was merely its social guest. Social hosts do not typically require their guests to sign permission slips and pay for their hospitality. Here, unlike a social guest accepting a host’s unrequited hospitality, plaintiff attended an organized group event — for which her father paid Grace $ 40 — intended to serve the mutual interests of the attendees and sponsor.
In contrast to the inapposite licensee categories, plaintiff falls more naturally within the Premises Liability Act’s definition of an invitee. [HN14] The Act creates two sometimes overlapping subcategories of invitees: (1) those present to transact business of mutual interest, and (2) public invitees. § 13-21-115(5)(a); see also Restatement (Second) of Torts § 332 & cmt. a (1965) (creating two similar subcategories, of “business visitors” and “public invitees,” but [*19] explaining that many invitees could be placed in either class).
Grace contends that plaintiff was not an invitee because her invitation did not involve transacting business and was not extended to the general public. We disagree.
As to the former subcategory, commercial business was transacted between Grace and plaintiff: plaintiff’s father paid Grace $ 40 so plaintiff could attend the event. [HN15] That Grace ultimately may not have profited (because the $ 40 was included among monies paid over to SDA or because Grace defrayed remaining costs through award of a “partial scholarship”) is not relevant under the Premises Liability Act.
Moreover, [HN16] those present on land “to transact business in which the parties are mutually interested,” § 13-21-115(5)(a), need not invariably be engaged in commercial activity. See generally Bryan A. Garner, Black’s Law Dictionary 226 (9th ed. 2009) (definition of “business” can include “transactions or matters of a noncommercial nature”); cf. In re Parental Responsibilities of H.Z.G., 77 P.3d 848, 851-53 (Colo. App. 2003) (holding that Colorado’s long-arm statute, extending personal jurisdiction based on “[t]he transaction of any business within this state,” § 13-21-124(1)(a), C.R.S. 2010, [*20] applies to noncommercial activities; following out-of-state cases). Thus, other courts have extended “business invitee” status where nonprofit entities encouraged attendance by individuals whose presence provided no apparent economic benefit. See, e.g., Thomas v. St. Mary’s Roman Catholic Church, 283 N.W.2d 254, 258 (S.D. 1979) (visiting high school basketball player injured at a church school gymnasium was the church’s “business invitee”); Home v. N. Kitsap School Dist., 92 Wn. App. 709, 965 P.2d 1112, 1118 (Wash. Ct. App. 1998) (visiting assistant football coach at game where no admission was charged was an invitee because “[h]is presence was related to [public school district’s] business of running its schools”).
As to the latter subcategory, [HN17] one can be a “public” invitee where an invitation is extended to “the public, or classes or members of it.” Restatement (Second) of Torts § 332 cmt. c (emphasis added). Thus, a garden club member was an invitee of an estate “opened to those members of the public who were on the Palm Beach Garden Club tour of homes.” Post v. Lunney, 261 So. 2d 146, 148 (Fla. 1972). And a girl-scout leader was an invitee where a bank allowed the troop (“a segment of the public”) [*21] free use of its facilities. McKinnon v. Washington Fed. Sav. & Loan Ass’n, 68 Wn.2d 644, 414 P.2d 773, 777-78 (Wash. 1966).
Ultimately, plaintiff was an invitee because Grace’s invitation carried an implicit assurance that Grace would act with reasonable care to protect her. See Dan B. Dobbs, The Law of Torts 600 (2000) (“The real point is that [HN18] anyone who receives implicit or explicit assurance of safety is entitled to the invitee status and the reasonable care that goes with it.”). Grace’s post hoc denials of such implicit assurances are unpersuasive. Few youths would attend — and even fewer parents would allow and pay for their child’s attendance at — an overnight event whose sponsor disclaimed any intent or ability to make the event reasonably safe.
IV. Pretrial and Trial Proceedings
A. Pretrial Election
Though the case went to the jury only on a Premises Liability Act (PLA) claim, Grace argues that plaintiff should have been required to elect before trial between PLA and negligence claims. But it would have been unfair to compel such an election before resolving Grace’s contentions that it was not subject to the PLA. In any event, Grace was not prejudiced by lack of an earlier election. Cf. Thornbury v. Allen, 991 P.2d 335, 340 (Colo. App. 1999) [*22] (harmless error to instruct jury on both negligence and PLA claims).
B. Evidentiary Ruling
The trial court, over Grace’s objection, allowed into evidence the rental agreement that prohibited Grace from using the ATVs to tow anything. Grace renews its CRE 401-403 contentions that this contract was irrelevant and unfairly prejudicial.
[HN19] Trial courts have “broad discretion” to decide if documentary evidence should be admitted over relevancy and unfair prejudice objections. Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1329 (Colo. 1986). Here, it was within the trial court’s broad discretion to conclude that the rental contract was relevant and had probative value that was not significantly outweighed by any danger of unfair prejudice. That Grace used the rented ATVs for a contractually prohibited activity — the very activity that injured plaintiff — could properly be considered by the jury in evaluating whether Grace used reasonable care under all the circumstances of this case.
C. Closing Argument
Grace contends that plaintiff’s counsel’s closing argument was improper in various respects. None of Grace’s current objections was timely raised in the trial court. Indeed, after the case had [*23] been submitted, Grace’s counsel noted just one alleged error in plaintiff’s closing argument; as to that single argument, he stated, “I don’t know what a remedy for that is, but I think the record should reflect that [this argument] did occur.” The trial court responded that “[t]he record reflects what it was.”
Our review of these unpreserved objections is exceptionally limited. [HN20] There is no civil rule analogue to the criminal rule, Crim. P. 52(b), allowing plain error review. In civil damages cases, moreover, liberty is not at stake and there is no constitutional right to effective counsel. Thus, only in a “rare” civil case, involving “unusual or special” circumstances — and even then, only “when necessary to avert unequivocal and manifest injustice” — will an appellate court reverse based on an unpreserved claim of error. Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo. App. 2009) (discussing Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 586-87 (Colo. 1984), and Robinson v. City & County of Denver, 30 P.3d 677, 684 (Colo. App. 2000)).
Grace’s unpreserved challenges to plaintiff’s closing arguments do not come close to meeting this demanding standard. The closing arguments [*24] were not plainly improper and did not result in any manifest injustice.
V. Amount of Judgment
The final issue is whether judgment should have entered in the full amount of the jury verdicts or a lesser amount covered by Grace’s insurance. The trial court reduced the judgment to $ 2 million total but, because it construed Grace’s policy to cover them, added prejudgment interest and costs. All sides challenge this amount. Grace contends the trial court acted erroneously (or at least precipitously) in construing the policy to cover prejudgment interest on top of the $ 2 million policy limits, while plaintiff and insurer contend that the amount of judgment should have been tied to the higher jury verdicts regardless of any lesser insurance coverage carried by Grace. We agree with plaintiff and insurer.
The issue turns on a construction of section 7-123-105, C.R.S. 2010. That statute dates to 1967, a year after a fractured supreme court case (generating a majority opinion, a separate concurrence, two separate dissents, and an “addendum” by the author of the majority opinion) grappled with the common law doctrine of charitable trust immunity. See Hemenway v. Presbyterian Hospital Ass’n, 161 Colo. 42, 419 P.2d 312 (1966). [*25] Surprisingly, the statute has never been construed in a published appellate opinion.
Before addressing the statute, we summarize the common law backdrop against which it was enacted. One thing was clear under Colorado common law: funds held in “trust” for charitable purposes could not be “depleted” by a tort judgment. St. Mary’s Academy v. Solomon, 77 Colo. 463, 468, 238 P. 22, 24 (1925). Later cases also stated, however, that while this “trust-fund rule does not bar an action against a charitable institution based on the tort of its agents,” “it does prohibit the levying of an execution under a judgment procured against it in such a suit on any property which is a part of the charitable trust.” O’Connor v. Boulder Colorado Sanitarium Ass’n, 105 Colo. 259, 261, 96 P.2d 835, 835 (1939), quoted and followed in St. Luke’s Hospital Ass’n v. Long, 125 Colo. 25, 28-29, 240 P.2d 917, 920 (1952).
Colorado cases thus distinguished between a permissible tort suit or judgment against a charity and the exemption of trust funds from levy or execution. In 1960, our supreme court wrote that “so-called charitable immunity does not protect from suit or judgment” and “immunity from attachment of trust [*26] funds does not come into play until such attachment is attempted.” Michard v. Myron Stratton Home, 144 Colo. 251, 258, 355 P.2d 1078, 1082 (1960).
The distinction became blurred, and confusion was spawned, where it was undisputed a defendant charity had no non-trust-fund assets available to satisfy any judgment. That was the situation in Hemenway, where the justices divided over the propriety of pretrial dismissal. Compare 161 Colo. at 45, 419 P.2d at 313 (affirming dismissal because “no useful purpose would be served by directing this action to proceed to judgment” where parties stipulated there were no non-trust-fund assets available), with id. at 46, 419 P.2d at 314 (McWilliams, J., concurring) (agreeing dismissal should be affirmed, but only because parties had stipulated to it if trust-fund doctrine remained viable), and with id. (Pringle, J., dissenting) (issue was “premature” because “in this State charitable immunity is not immunity from suit or liability for tort, but only a recognition that trust funds cannot be seized upon by execution nor appropriated to the satisfaction of tort liability”).
That confusion should not have extended to the present case, where Grace indisputably [*27] had a $ 2 million insurance policy. Even under common law it was clear that insurance funds could be executed on to satisfy a tort judgment. See O’Connor, 105 Colo. at 261-62, 96 P.2d at 836.
In any event, the author of Hemenway invited Colorado’s legislature to address the issue. See 161 Colo. at 49-53, 419 P.2d at 316-17 (addendum of Moore, J.). The General Assembly accepted this invitation a year later when it enacted the predecessor of the statute now codified as section 7-123-105. See Ch. 327, sec. 1, § 31-24-110, 1967 Colo. Sess. Laws 655.
[HN21] The statute, titled “Actions against nonprofit corporations,” does two things by its express terms. First, it removes any possible immunity from suit by providing that “[a]ny other provision of law to the contrary notwithstanding, any civil action permitted under the law of this state may be brought against any nonprofit corporation.” § 7-123-105. Second, it allows for levy and execution against otherwise immune assets of nonprofit entities “to the extent” the entity would be reimbursed by liability insurance. See id. (“the assets of any nonprofit corporation that would, but for articles 121 to 137 of this title, be immune from levy and execution [*28] on any judgment shall nonetheless be subject to levy and execution to the extent that such nonprofit corporation would be reimbursed by proceeds of liability insurance policies carried by it were judgment levied and executed against its assets”).
Thus, under the statute’s plain terms, there is no longer (if there ever was) any impediment to suits against nonprofit organizations. The statute, moreover, does not limit the amount of any resulting judgment, but simply addresses “the extent” to which any such judgment is “subject to levy and execution.” Id.
We conclude, under the plain language of the statute and under the prior common law, that the existence and amount of liability insurance provides no basis for limiting a judgment against a nonprofit or charitable defendant. Rather, the issue of liability insurance is relevant only when a plaintiff seeks to levy and execute on a judgment.
Here, therefore, it is premature to construe Grace’s insurance policy to determine the extent of its coverage, including whether the policy would cover prejudgment interest in addition to any liability limit. Regardless of insurance coverage, plaintiff and insurer were entitled to entry of judgment against [*29] Grace to the full amount of a judgment that would have been entered against a for-profit entity. Whether and to what extent plaintiff and insurer ultimately can execute on their judgment is a separate issue that need not be decided at this juncture.
VI. Conclusion
The judgment is vacated as to the amount, and the case is remanded for entry of a new judgment unreduced by any limits on Grace’s insurance coverage. The judgment is affirmed in all other respects.
JUDGE CARPARELLI concurs.
JUDGE FURMAN dissents.
DISSENT BY: FURMAN
DISSENT
JUDGE FURMAN dissenting.
Plaintiff was seriously injured at a youth retreat (Winterama 2005) sponsored by Grace Community Church. She sued Grace for negligence. The jury returned verdicts against Grace totaling more than $ 4 million. I disagree with the majority as to
(1) the duties Grace owed plaintiff under the premises liability statute,
(2) the interpretation of the parental waiver statute, and
(3) various evidentiary errors.
Therefore, I respectfully dissent.
I. Colorado’s Premises Liability Statute
I agree with the majority that Grace was a landowner under Colorado’s premises liability statute. Section 13-21-115(1), C.R.S. 2010, of Colorado’s premises liability statute provides: “For [*30] the purposes of this section, ‘landowner’ includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1221 (Colo. 2002)(construing the word “and” to distinguish between two broad classes of landowners).
As a landowner, Grace owed plaintiff duties depending on whether plaintiff was a “licensee” or an “invitee.” Subsections (3)(b) and (c) of section 13-21-115 state, in relevant part:
(3)(b) A licensee may recover only for damages caused:
(I) By the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew . . . .
(c)(I). . . [A]n invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.
The landowner’s intent in offering the invitation determines the status of the visitor and establishes the duty of care the landowner owes the visitor. See § 13-21-115(5)(a), [*31] (b); see also Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. 1995). The status of the visitor and duty of care the landowner owes are questions of law for the court to decide. § 13-21-115(4) (“In any action to which this section applies, the judge shall determine whether the plaintiff is a trespasser, a licensee, or an invitee . . . .”).
If a landowner invites a person to enter his land, and the landowner either expects a commercial benefit from that person or has extended an invitation to the public at large, the person is an invitee. Restatement (Second) of Torts § 332(2), (3) & cmts. c, d, e (1965); see Carter, 896 S.W.2d at 928; see also Wolfson v. Chelist, 284 S.W.2d 447, 448 (Mo. 1955)(invitee status arises “when the owner invites the use of his premises for purposes connected with his own benefit, pleasure and convenience,” and when this occurs, “the duty to take ordinary care to prevent [the invitee’s] injury is at once raised and for the breach of that duty an action lies” (emphasis in original)(quoting Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 3, (Mo. 1909))). Conversely, if a landowner either permits a person’s entry onto his land or invites that person as his social guest, but the landowner [*32] does not expect a commercial benefit, that person is a licensee. Restatement (Second) of Torts § 330 cmts. a, h (1965). I conclude plaintiff was not an invitee because Grace neither expected a commercial benefit from plaintiff nor extended an invitation to the public at large.
A. Invitee Status
Section 13-21-115(5)(a) defines “invitee” as
a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.
The two categories of invitees in section 13-21-115(5)(a) track those identified in the Second Restatement of Torts. See Restatement (Second) of Torts § 332(2), (3) (creating categories of “business visitor” and “public invitee”). I conclude plaintiff did not satisfy either category.
1. Business Visitor
Concerning the “business visitor” category, the majority concludes noncommercial activity can confer invitee status. However, the majority’s conclusion conflicts with the opinion of another division of this court, which expressly recognized that “the General Assembly [*33] intended the ‘invitee’ status to apply in circumstances in which the ‘landowner’ receives a financial benefit from the relationship.” Maes v. Lakeview Assocs., Ltd., 892 P.2d 375, 377 (Colo. App. 1994)(citing legislative history), aff’d, 907 P.2d 580 (Colo. 1995); see also Wolfson, 284 S.W.2d at 450 (invitation to invitee must confer some “material benefit motive”); Brian A. Garner, Black’s Law Dictionary 226 (9th ed. 2009)(defining “business” as “[a] commercial enterprise carried on for profit,” “commercial enterprises,” or “[a] [c]ommercial transaction”).
The majority quotes a portion of Black’s definition of “business” for the proposition that “‘business’ can include ‘transactions or matters of a noncommercial nature.'” However, that definition has as its example, “the courts’ criminal business occasionally overshadows its civil business.” Hence, in that context, “business” means some type of purposeful activity not related to the other party, rather than business transactions “in which the parties are mutually interested.” § 13-21-115(5)(a).
Thus, I believe the majority’s holding that the “business” contemplated by section 13-21-115(5)(a) includes “transactions or matters of a noncommercial [*34] nature” (an activity that confers no commercial benefit) irreconcilably conflicts with the legislature’s carefully chosen language. Moreover, in the two out-of-state cases relied on by the majority, there is little to no analysis of this issue. In Thomas v. St. Mary’s Roman Catholic Church, the court baldly concludes the plaintiff was a “business invitee.” 283 N.W.2d 254, 258 (S.D. 1979). And in Home v. North Kitsap School District, the court merely recites its adoption of the Second Restatement to conclude that the plaintiff was an invitee without discussing the fact that the activity was noncommercial. 92 Wn. App. 709, 965 P.2d 1112, 1118 (Wash. App. 1998); see id. at 1117 nn. 17-19.
Grace’s then-youth pastor testified at trial, and it is not disputed, that when Grace received the monies from the youth for Winterama, he transferred those monies to SDA as a matter of course. Grace was thus a mere intermediary for the business transaction that occurred between plaintiff and SDA. Accordingly, because Grace derived no commercial benefit from the visit, I conclude plaintiff was not a business visitor. See Maes, 892 P.2d at 377; see also Mooney v. Robinson, 93 Idaho 676, 471 P.2d 63, 65 (Idaho 1970)(holding that the “rendition [*35] by a social guest of an incidental economic benefit to the occupier of the premises will not change the licensee’s status to that of an invitee”).
Moreover, no evidence was adduced at trial to support the trial court’s finding that plaintiff rendered financial compensation–a commercial benefit–to Grace for its supervision of her. Rather, the undisputed evidence demonstrates that every dollar Grace received it remitted to SDA, and that the chaperones were not compensated. Thus, the trial court’s conclusion that plaintiff was an invitee because “she entered on the property to transact business which was namely the promotion of spirituality, positive youth relationships for which she paid Grace to provide the supervision,” which conferred no commercial benefit on Grace, was error. See Maes, 892 P.2d at 377; see also Carter, 896 S.W.2d at 928.
2. Public Invitee
Concerning the “public invitee” category, the majority concludes invitee status may lie where the invitation applies merely to “classes or members of” the public.
However, in discussing situations where a landowner extends an invitation to “classes or members of” the public, the Second Restatement includes the term “classes or members [*36] of” in the context of a variety of landowners inviting the public at large to enter:
The nature of the use to which the possessor puts his land is often sufficient to express to the reasonable understanding of the public, or classes or members of it, a willingness or unwillingness to receive them. Thus the fact that a building is used as a shop gives the public reason to believe that the shopkeeper desires them to enter or is willing to permit their entrance, not only for the purpose of buying, but also for the purpose of looking at the goods displayed therein or even for the purpose of passing through the shop.
Restatement (Second) of Torts § 332 cmt. c (emphasis added).
Moreover, section 13-21-115(5)(a) defines “invitee” as “a person who enters or remains on the land of another . . . in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.” The commonly accepted and understood meaning of “public” is “the people as a whole: populace, masses.” Webster’s Third New International Dictionary 1836 (2002). Hence, in a “public invitee” situation the landowner must invite the public at large or imply that the public [*37] at large is expected to enter or remain. This construction satisfies the legislative purpose “to clarify and to narrow private landowners’ liability.” Pierson, 48 P.3d at 1219.
Trial evidence reveals Grace did not extend its invitation to attend Winterama 2005 to the public at large, but limited its invitation to Grace’s youth group and their friends. Grace’s then-youth pastor testified that the Winterama waiver forms were mailed only to those youth who were on a list that the church had on file, that youth group students “would pick [the forms] up Wednesday night during a program,” and that “[s]ome students took permission slips home to give to their friends.” Likewise, when plaintiff was asked how she perceived Winterama 2005 before the event occurred, she confirmed that she understood Winterama to be “essentially a church retreat.” Accordingly, I conclude plaintiff could not be a “public invitee” because there simply was no invitation to the public at large.
The majority’s reliance on out-of-state cases, to conclude the invitation may apply only to select classes or members of the public, is misplaced. In Post v. Lunney, the plaintiff was declared to be a public invitee because she [*38] had been “invited to enter [land] which had been opened to those members of the public” who were on a tour of area homes. 261 So. 2d 146, 148 (Fla. 1972). There is no indication that the small subset of the public of which the plaintiff was a part was the only group or type of group that was allowed to tour the homes. The Post court expressly relied on subsection 2 of section 332 of the Restatement (Second) of Torts, which reads, “A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Id. (emphasis added). And in McKinnon v. Washington Federal Savings & Loan Ass’n, where the court determined the plaintiff also was a public invitee, the defendant held its premises open “for the free use of local clubs and organized groups for meetings and conferences, either during regular office hours or in the evenings,” 68 Wn.2d 644, 414 P.2d 773, 774 (Wash. 1966), and not solely for the plaintiff’s select group. Thus, in both Post and McKinnon, the premises were otherwise held open to the public at large.
B. Licensee (Social Guest) Status
A member of Grace’s youth group asked plaintiff to attend Winterama 2005, [*39] and Grace provided its permission (after it received the parental consent form) before she could do so. Thus, I conclude plaintiff was a social guest (licensee) of Grace, and Grace owed plaintiff the duty to make safe dangers of which it was aware. § 13-21-115(3)(b), (5)(b); see Carter, 896 S.W.2d at 928.
Section 13-21-115(5)(b) defines “licensee” as “a person who enters or remains on the land of another for the licensee’s own convenience or to advance [the licensee’s] own interests.” A social guest is one who has received a social invitation, and is a subclass of licensees. § 13-21-115(5)(b) (“‘Licensee’ includes a social guest.”); see Carter, 896 S.W.2d at 928.
The majority concludes plaintiff was not a social guest because “social hosts do not typically require their guests to sign permission slips and pay for their hospitality.” Although the majority implies that social hosts may require their guests to sign permission slips, I believe the majority’s conclusion overlooks the important difference between “invitation” and “permission.” When courts decide if an individual is an invitee or a licensee, the distinction between invitation and permission is critical:
Although invitation does [*40] not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. . . .
Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee . . . ; but it does not make him an invitee, even where his purpose in entering concerns the business of the possessor.
Restatement (Second) of Torts § 332 cmt. b. Thus, if there is no invitation extended to the prospective plaintiff as would be extended to the general public, he or she is not an invitee, but rather a licensee who is on the land “pursuant to the landowner’s permission or consent.” § 13-21-115(5)(b).
Grace restricted its permission to attend Winterama 2005 to its own youth and their friends whose parents had waived in writing their right to hold Grace responsible for “any liability which may result from participation.” Grace consented to the attendance of the youth on condition that the waiver was signed. The [*41] precondition of a waiver demonstrates that the Winterama participants were permitted to come rather than invited, which “is sufficient to make the visitor a licensee.” Restatement (Second) of Torts § 332 cmt. b.
The Second Restatement’s definition of “social guest” affirms that:
[A]lthough a social guest normally is invited, and even urged to come, he is not an “invitee,” within the legal meaning of that term . . . . He does not come as a member of the public upon premises held open to the public for that purpose, and he does not enter for a purpose directly or indirectly connected with business dealings with the possessor. The use of the premises is extended to him merely as a personal favor to him.
Restatement (Second) of Torts § 330 cmt. h(3).
Plaintiff was not a member of Grace, and her attendance at Winterama 2005 was due solely to the influence of a male classmate of hers at the Denver School of the Arts, who expressly persuaded her to come to Winterama. She testified that her perception of Winterama 2005 was that “we would leave our everyday lives and go try to further our spiritual enlightenment.” See Garner, Black’s Law Dictionary 776 (social guest is “[a] guest who is invited [*42] to enter or remain on another person’s property primarily for private entertainment as opposed to entertainment open to the general public”); Webster’s Third New International Dictionary at 1008 (a guest is “a person to whom hospitality . . . is extended”).
Further, the majority surmises that Grace’s invitation carried an “implicit or explicit assurance” that Grace would act with reasonable care to protect plaintiff. The majority reasons that “[f]ew youths would attend — and even fewer parents would allow and pay for their child’s attendance at — an overnight event whose sponsor disclaimed any intent or ability to make the event reasonably safe.” However, in its section on licensees, the Second Restatement explains that
there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family.
Restatement (Second) of Torts § 330 cmt. h(3). Thus, as a social guest, plaintiff [*43] could rely on precautions that a landowner would take as he would for himself or for his family.
The evidence reveals the leaders regarded the youth attending Winterama 2005 as “social guests” because the leaders took precautions for the safety of the attendees as they would for their own safety. One chaperone testified he personally rode the inner tube towed by the ATV around the lake three or four times before plaintiff rode the inner tube. And the then-youth pastor testified that the leaders “walk[ed] pretty much the entirety of the lake, or [they] [would] get on the ATVs and drive it, too,” to inspect the lake for “potential hazards” exhaustively before the ATV activity started. He said these hazards were the type that “could cause a safety issue with the activities that [they] were going to do on the ice” and that included sharp objects that could “cause the tube to puncture.”
Another chaperone who drove the ATV–and who also participated in the inspection of the lake–testified that he had used an ATV and inner tubes to tow people “700 to 1000 times” and that he had in fact towed his own daughter behind the ATV on the lake such that “[he] treated [his daughter] just like any of [*44] the other students.” Because the evidence shows Grace’s chaperones not only took precautions that they would have for their own safety, but also took the same care for members of their own families as for other attendees, plaintiff was a licensee of Grace at Winterama 2005.
Because plaintiff was a licensee, Grace was entitled to additional protections under the premises liability statute. See Pierson, 48 P.3d at 1219 (overriding purpose of premises liability statute was “to clarify and to narrow private landowners’ liability to persons entering their land, based upon whether the entrant is a . . . licensee[] or invitee”). Accordingly, Grace was liable to plaintiff only “with respect to dangers created by the landowner of which the landowner actually knew.” § 13-21-115(3)(b)(I). Because the jury was not so instructed, I would reverse the judgment and remand for a new trial.
II. Colorado’s Parental Waiver Statute
The majority interprets the word “informed” in section 13-22-107, C.R.S. 2010, Colorado’s parental waiver statute, to mean “made with full knowledge of the risks involved and the alternatives” (quoting Garner, Black’s Law Dictionary at 346). The majority implies Grace’s waiver [*45] form was facially deficient because it delineated neither the specific activities in which the youth would engage nor the risks associated with each activity. Because I conclude the majority’s resolution of this issue vitiates the legislative intent expressed in the statute, I respectfully dissent.
The legislature explicitly stated the purpose of Colorado’s parental waiver statute:
(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist;
(II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities;
(III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children.
(IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;
(V) These [*46] are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and
(VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child . . . .
§ 13-22-107(1)(a)(I)-(VI). Hence, the legislature intended (1) to afford children the “maximum opportunity” to engage in “essential activities” having “certain risks”; (2) to uphold and effectuate the choices of parents for their children “concerning the risks and benefits of participation in” potentially risky activities; and (3) to give “public, private, and non-profit entities . . . a measure of protection” by insulating them from liability for negligent conduct during “activities that may involve risk.” Id. Based on these purposes, the legislature stated, “A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” § 13-22-107(3). Accordingly, the word “informed” [*47] ought to be construed in light of the statutory scheme, which is geared toward expanding children’s access to activities involving risk yet simultaneously contracting the liability exposure of entities providing those activities, so that those entities might have a “measure of protection” and not be “unwilling or unable to provide the activities.” § 13-22-107(1)(a)(I), (II), (VI).
A. Informed Consent
Section 13-22-107 does not define the term “informed.” I agree with the majority that “informed” as defined in Black’s Law Dictionary at 346–“made with full knowledge of the risks involved and the alternatives”–should govern this analysis. Accordingly, I conclude the term “informed” in section 13-22-107 means only that a parent be “informed” as to the possible risks involved.
Applying this definition, I conclude the waiver in this case was sufficient, for several reasons. First, the waiver identified the general nature of the activities to which the waiver applied: “Winterama 2005 and all activities associated with it.” Second, the waiver identified the possible risks associated with Winterama 2005–“injury or sickness”–and even required the parent to consent to any medical treatment Grace [*48] might need to administer or pay for in the event of such injury or sickness. Third, even though the waiver did not state verbatim, “I recognize I have the right to sue Grace in the event the negligence of Grace or its agents causes my child personal injury, but I give up that right voluntarily,” the waiver nevertheless more than accomplished this purpose–by stating the signing parent “will not hold [Grace] or it’s [sic] participants responsible for any liability which may result from participation.” Thus, I conclude the waiver was sufficient to give Grace the “measure of protection” from legal liability that section 13-22-107 envisions.
In canvassing the case law where the supreme court upheld the validity of waivers, the majority concludes that a waiver must “contain[] some reference to waiving personal injury claims based on the activity being engaged in.” I disagree with this conclusion because I believe the majority reads the statute more broadly than the legislature intended. The majority would require public, private, or nonprofit organizations to include in their waiver forms a plethora of activities and, with respect to each, “assess the degree of risk and the extent of possible [*49] injuries from any activity.” I believe the logical result would be absurd disclosure requirements, such as,
Children attending Winterama 2005 will be staying in cabins. The paths and steps leading to each cabin may be snow-packed and icy. There is a risk that your child may slip and fall on the paths or steps and a fall may result in serious injuries including, without limitation, broken bones, concussions, and paralysis,
or lengthy booklets describing every conceivable activity and associated possible injury. I disagree with this approach because, in my opinion, it would unduly expose those entities to liability for activities that the entities inadvertently failed to identify and include in their parental waiver forms, or for activities that they could not possibly know or anticipate. Further, such an approach runs contrary to the legislative intent of providing “a measure of protection against lawsuits,” and without that measure of protection, these entities may be unwilling or unable to provide these “essential activities” to children in Colorado. I believe it is not reasonable to expect organizations operating under section 13-22-107 to anticipate every permutation of a recreational [*50] event.
Moreover, I would not engage in what I respectfully believe to be the majority’s parsing of the waiver. The waiver at issue is addressed to the everyday, commonsense parent. I submit the everyday, commonsense parent would not analyze what each sentence of a waiver specifically addresses apart from each other sentence, but rather would comprehend what the waiver addresses en toto: a release of his or her child’s prospective claim for negligence. See § 13-22-107(3).
B. The Parental Waiver Affirmative Defense
In addition, I conclude the trial court committed reversible error when, on the morning of closing arguments, it sua sponte precluded the jury from considering the affirmative defense of parental waiver. See Pollock v. Highlands Ranch Community Ass’n, 140 P.3d 351, 354 (Colo. App. 2006).
The day before closing arguments occurred, the trial court originally determined that a jury instruction concerning the effect of the waiver could not be given because the supreme court assigned the determination of the effect of the waiver to the trial court as a question of law. Cf. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). But after counsel for Grace pointed out the [*51] court’s resolution of this issue essentially would be “to take that from the jury” and that the court “need[ed] to state the basis” for its ruling, the court said it would “hold off on the jury instruction piece.”
When the issue arose again late that same day, after the close of evidence and during the jury instructions conference, plaintiff’s counsel argued the language in the waiver did not suffice to make plaintiff’s mother “informed.” The court asked plaintiff’s counsel to state his position on the affirmative defense of waiver, and he said,
What I think — what I would like to see the Court do, Your Honor, is to declare the effect of this release, and I think the effect of this permission slip doesn’t say this, does not have the effect of releasing the defendant’s [sic] from the premises liability claims.
The court responded, “I want to take a few minutes to think about this. . . . We’ll be in recess.” After that exchange and a brief statement from counsel for SDA, the record abruptly ceases. There is nothing about the court’s thoughts on the waiver until early the next day during its instructions to the jury right before closing arguments. At this time, the court announced to the [*52] jury that “the Court has ruled as a matter of law that Exhibit 85 [the parental waiver] is not a defense to Plaintiff’s claims in this case” and struck the waiver from the record with no further elaboration.
In my view, the trial court erred in taking the issue away from the jury. I acknowledge that “[t]he determination of the sufficiency and validity of an exculpatory agreement is [primarily] a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). However, contrary to the majority, I conclude Grace presented sufficient evidence for the trial court to submit to the jury the parental waiver as an affirmative defense.
“An affirmative defense ‘is a legal argument that a defendant, who is capable of being sued, may assert to require the dismissal of a claim or to prevail at trial.'” Paratransit Risk Retention Group Ins. Co. v. Kamins, 160 P.3d 307, 319 (Colo. App. 2007)(quoting State v. Nieto, 993 P.2d 493, 507 (Colo. 2000)). The parental waiver defense, if successful, would allow Grace to avoid premises liability. Accordingly, it is an affirmative defense.
Because waiver is an affirmative defense, the defendant has the burden to prove waiver. C.R.C.P. 8(c); [*53] see City of Westminster v. Centric-Jones Constructors, 100 P.3d 472, 480 (Colo. App. 2003)(“Failure to mitigate damages is an affirmative defense under C.R.C.P. 8(c) on which the defendant bears the burden of proof.”); see also Fidelity & Deposit Co. v. Colo. Ice & Storage Co., 45 Colo. 443, 449, 103 P. 383, 386 (1909)(defendant had burden of proof to sustain proffered affirmative defense); Tracz v. Charter Centennial Peaks Behavioral Health Sys., Inc., 9 P.3d 1168, 1174 (Colo. App. 2000)(concluding defendants “met their initial burden of production to establish their affirmative defense”). And section 13-22-107 is an affirmative defense to premises liability because section 13-21-115 “does not exclusively limit defenses and does not abrogate statutorily created defenses, which were available to landowners before the 2006 amendment and afterward.” Tucker v. Volunteers of Am. Colo. Branch, 211 P.3d 708, 711 (Colo. App. 2008), aff’d sub nom. Volunteers of Am. v. Gardenswartz, P.3d , 2010 Colo. LEXIS 861 (Colo. No. 09SC20, Nov. 15, 2010).
At trial, under C.R.C.P. 8(c), the trial court’s only responsibility was to assess whether Grace presented sufficient evidence to support the affirmative defense of [*54] parental waiver. See Fair v. Red Lion Inn, 943 P.2d 431, 437 (Colo. 1997)(holding that failure to mitigate damages, an affirmative defense under C.R.C.P. 8(c), “will not be presented to the jury unless the trial court determines there is sufficient evidence to support it”); cf. Stauffer v. Karabin, 30 Colo. App. 357, 363-64, 492 P.2d 862, 865 (1971)(where doctor in malpractice suit presented evidence that his failure to inform plaintiff of all risks attendant to an operation was consistent with community medical standards, “the determination then becomes one for the jury and a directed verdict in favor of plaintiff would not be warranted”).
I believe the trial court misapprehended its duty with regard to the legal sufficiency of Grace’s parental waiver. The question whether a parental waiver is “voluntary” is answered if the parent is shown to have signed the waiver. The question whether a parental waiver is “informed” is answered if the waiver on its face defines the possible risks and the general nature of the activities to which the waiver applied. See Garner, Black’s Law Dictionary at 346 (“informed” is “made with full knowledge of the risks involved and the alternatives”). To this [*55] end, the parental waiver statute focuses on the risks involved in recreational activities for children as it affirms the conscious choices that parents make for their children. § 13-22-107(1)(a)(I), (IV). Thus, if the parental waiver is both “voluntary” and “informed,” the trial court must submit the affirmative defense of parental waiver to the jury.
I would conclude Grace presented sufficient evidence to support its affirmative defense of parental waiver. The parental waiver was signed voluntarily because, as plaintiff herself testified, her mother signed the waiver two days before Winterama 2005 occurred. And the parental waiver on its face not only informed mother of the possible risks associated with Winterama 2005– “injury or sickness”–but also revealed her willingness to “not hold [Grace] or it’s [sic] participants responsible for any liability which may result from participation.” Thus, I conclude the trial court should have permitted the jury to consider Grace’s affirmative defense of parental waiver, and believe it erred in not doing so.
Moreover, the way the trial court ruled on the evidence of waiver throughout the case–until it removed Exhibit 85 from the trial evidence [*56] and jury’s consideration–reveals that Grace had no reason to expect it had to clear up any lingering questions of fact for the jury to consider the affirmative defense of parental waiver. For example, before trial, Grace moved for summary judgment on the issue of waiver, but the court ruled there was a question of fact “as to whether a permission slip was signed on behalf of Plaintiff.” (The original apparently was lost by the hospital.) In response, during plaintiff’s case-in-chief, counsel for Grace established that plaintiff’s mother in fact had signed the waiver, and that Grace received the waiver before the Winterama event.
Based on this uncontroverted testimony, at the close of plaintiff’s case Grace moved for a directed verdict. But the court found “the jury could conclude that there was inadequate notice to the mother” and “a jury could conclude that the activity [in question] was a reckless act or grossly negligent act for which a parent is not permitted to waive the child’s prospective claim for such conduct.” The court concluded this despite the fact that plaintiff in her complaint did not assert any claim for tortious conduct rising above the level of simple negligence. [*57] Again, in response, Grace used both expert testimony and lay testimony in its case to establish that the ATV activity was done in a safe manner. Nevertheless, as noted, on the morning of closing arguments the court told the jury that it could not consider the parental waiver. At that point, its role should have been limited to deciding whether Grace had presented sufficient evidence to support the existence of the parental waiver as an affirmative defense. The court did not so limit its role.
Accordingly, I would reverse the judgment and remand for a new trial.
III. The ATV Rental Contract
The majority concludes the trial court did not abuse its discretion in allowing the ATV rental contract into evidence over Grace’s objection. I respectfully disagree. There was nothing in the contract, and no evidence regarding the parties’ intent was adduced, to suggest plaintiff’s injury was a danger that Blue Sky Motors–who was not a party to this case–and Grace, the two parties to the ATV contract, knew about or should have known about in this premises liability case.
For all these reasons, I would reverse the judgment and remand for a new trial.


Kirton vs. Fields, No. SC07-1739, No. SC07-1741, No. SC07-1742 (FL 2008)

SCOTT COREY KIRTON, etc., et al., Petitioners, vs. JORDAN FIELDS, etc., et al., Respondents. DEAN DYESS, Petitioner, vs. JORDAN FIELDS, etc., et al., Respondents. H. SPENCER KIRTON, et al., Petitioners, vs. JORDAN FIELDS, etc., et al., Respondents.

No. SC07-1739, No. SC07-1741, No. SC07-1742

SUPREME COURT OF FLORIDA

2008 Fla. LEXIS 2378; 33 Fla. L. Weekly S 939

December 11, 2008, Decided

NOTICE:

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PRIOR HISTORY: [*1]

Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions. (Okeechobee County). Fourth District – Case No. 4D06-1486.

Fields v. Kirton, 961 So. 2d 1127, 2007 Fla. App. LEXIS 12241 (Fla. Dist. Ct. App. 4th Dist., 2007)

COUNSEL: William J. Wallace of William J. Wallace, P.A., Okeechobee, Florida, Richard Lee Barrett and Ralph Steven Ruta, of Barrett, Chapman and Ruta, P.A., Orlando, Florida, and Alan C. Espy of Alan C. Espy, P.A., Palm Beach Gardens, Florida, for Petitioners.

Bard d. Rockenbach of Burlington and Rockenbach, P.A., West Palm Beach, and Laurence C. Huttman of Rubin and Rubin, Stuart, Florida, for Respondents.

Timothy J. Owens of Christensen, Christensen, Donchatz, Kettlewell, and Owens, LLP, Columbus, Ohio, on behalf of The American Motorcyclist Association, for Amicus Curiae.

JUDGES: QUINCE, C.J. ANSTEAD, PARIENTE, and LEWIS, JJ., concur. ANSTEAD, J., specially concurs with an opinion. PARIENTE, J., concurs with an opinion. WELLS, J., dissents with an opinion. CANADY and POLSTON, JJ., did not participate.

OPINION BY: QUINCE

OPINION

QUINCE, C.J.

We have for review the decision of the Fourth District Court of Appeal in Fields v. Kirton, 961 So. 2d 1127 (Fla. 4th DCA 2007), which certified the following question to be of great public importance:

WHETHER A PARENT [*2] MAY BIND A MINOR’S ESTATE BY THE PRE-INJURY EXECUTION OF A RELEASE.

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. 1 For the reasons discussed below, we answer the certified question in the negative and hold that [HN1] a parent does not have the authority to execute a pre-injury release on behalf of a minor child when the release involves participation in a commercial activity. 2

1 The Fourth District also certified conflict with the decision of the Fifth District Court of Appeal in Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998). However, subsequent to its decision in Lantz and subsequent to the certification of conflict, the Fifth District decided Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112 (Fla. 5th DCA 2008), where the Fifth District aligned itself with the Fourth District in Kirton. For those reasons and because the Fourth District certified a question providing us for any independent basis for jurisdiction, we do not address the certified conflict.

2 We answer the certified question as to pre-injury releases in commercial activities because that is what this case involves. Our decision in this case should not be read as limiting our reasoning only [*3] to pre-injury releases involving commercial activity; however, any discussion on pre-injury releases in noncommercial activities would be dicta and it is for that reason we do not discuss the broader question posed by the Fifth District.

STATEMENT OF THE CASE AND FACTS

The instant action arises from the decision by the Fourth District Court of Appeal in Fields v. Kirton, 961 So. 2d 1127 (Fla. 4th DCA 2007). The facts of the underlying action were detailed in the opinion of that court:

Pursuant to a final judgment of dissolution of marriage, Bobby Jones was the primary residential parent for his fourteen year old son, Christopher. On May 10, 2003, the father took Christopher to Thunder Cross Motor Sports Park to ride his all terrain vehicle (ATV). To gain entry to the facility and be allowed to participate in riding the ATV, Bobby Jones, as Christopher’s natural guardian, signed a release and waiver of liability, assumption of risk, and indemnity agreement. While attempting a particular jump, Christopher lost control of his ATV, causing himself to be ejected. Tragically, he hit the ground with the ATV landing on top of him. He got up, walked a short distance, then collapsed and died. Christopher’s [*4] mother, Bette Jones, was unaware that the father was permitting their son to engage in this activity. She was also unaware that approximately one month prior to the accident causing Christopher’s death, he had attempted the same jump, resulting in a fractured rib and mild concussion.

Id. at 1128.

Subsequently, Fields, as personal representative of the estate of Christopher Jones, filed suit for wrongful death against Spencer Kirton, Scott Corey Kirton, Dudley Kirton, and the Kirton Brother Lawn Service, Inc. (“the Kirtons”) as owners and operators of Thunder Cross Motor Sports. The amended complaint also named Dean Dyess as a defendant for his participation in the management of the park. The Kirtons then filed an answer and affirmative defenses to the amended complaint. In one of the affirmative defenses, the Kirtons argued that the claims raised by Fields were barred by the release and waiver executed by Mr. Jones on behalf of his son. The Kirtons thereafter filed a motion for summary judgment based on the release and waiver. 3 The trial court entered an order granting the Kirtons’ motion for summary judgment on the wrongful death claim, finding that there was no genuine issue of material [*5] fact because the release executed by Mr. Jones on behalf of his minor child, Christopher, barred the claim.

3 Mr. Jones filed an affidavit in support of the Kirtons’ motion for summary judgment. In that affidavit, he admitted that he willfully and with full understanding executed the release on behalf of his minor child at Thunder Cross Motor Sports Park. He also stated that he understood that it was his intention to waive the right to sue for the death of Christopher and to be banned by the other terms as set forth in the general release. He further stated that he understood that by signing the general release, he was forever discharging the Kirtons for any and all loss or damage and any claim or demands on account of injury to Christopher or his property or resulting in the death of Christopher arising out of or related to the events, whether caused by the negligence of the releasees or otherwise.

On appeal, the Fourth District reversed the trial court’s order granting the motion for summary judgment. In doing so, the district court emphasized that the issue was not about a parent’s decision on what activities are appropriate for his or her minor child, which is properly left to the [*6] parent. Instead, the issue concerned the “decision to absolve the provider of an activity from liability for any form of negligence . . . [which] goes beyond the scope of determining which activity a person feels is appropriate for their child.” Id. at 1129. This is because the “effect of the parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” As a result, the district court found that these rights could not be waived by the parents absent a basis in common law or statute. Id. at 1129-30. The district court found that there was no statutory scheme governing the issue of pre-injury releases signed by parents on behalf of minor children. Because there is no basis in common law or statute, the district court found that the courts do not have the authority to “judicially legislate that which necessarily must originate, if it is to be law, with the legislature.” Id. at 1130. Accordingly, the district court held that a parent could not bind a minor’s estate by the parent’s execution of a pre-injury release. In doing so, the Fourth District also certified the above question to be of great public importance and certified [*7] conflict with the Fifth District Court of Appeal’s decision in Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998).

ANALYSIS

The issue in this case is the enforceability of a pre-injury release executed by a parent on behalf of a minor child that binds a minor child’s estate and releases an activity provider from liability. Because the enforceability of the pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (stating that [HN2] the standard of review for pure questions of law is de novo and no deference is given to the judgment of the lower courts).

The Kirtons and the amicus curiae 4 supporting their position assert that a parent has a fundamental right to make decisions relating to the care of a minor child, and that right includes executing a pre-injury release on behalf of the minor child. The Kirtons also argue that enforcing the validity of a pre-injury release is consistent with Florida courts that have ruled that a parent has the prelitigation right to forego settlement awards in favor of pursuing a lawsuit without court approval or appointment of a guardian [*8] ad litem. On the other hand, Fields contends that pre-injury releases are invalid because neither the common law nor the Legislature has given parents the authority to waive these substantive rights of a minor child.

4 The American Motorcyclist Association.

Parental Authority and the State’s “Parens Patriae” Authority

The enforceability of a pre-injury release concerns two compelling interests: that of the parents in raising their children and that of the state to protect children. [HN3] Parental authority over decisions involving their minor children derives from the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution. See Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality opinion) (“In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”); see also Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996) (“The fundamental liberty interest in parenting is protected by both the Florida and federal [*9] constitutions. In Florida, it is specifically protected by our privacy provision.”). In fact, beginning with Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923), the United States Supreme Court has recognized that [HN4] parents have a constitutionally protected interest in child rearing. In Troxel, the United States Supreme Court further pointed to [HN5] a presumption that

fit parents act in the best interests of their children. . . . Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

530 U.S. at 68-69; see also Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998) (“Neither the legislature nor the courts may properly intervene in parental decision-making absent significant harm to the child threatened by or resulting from those decisions.”).

However, these [HN6] parental rights are not absolute and the state as parens patriae may, in certain situations, usurp parental control. In Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392, 399 (Fla. 2005), we explained [*10] the concept of parens patriae as applied in this State:

[HN7] “Parens patriae,” which is Latin for “parent of his or her country,” describes “the state in its capacity as provider of protection to those unable to care for themselves.” Black’s Law Dictionary 1144 (8th ed. 2004). The doctrine derives from the common-law concept of royal prerogative, recognized by American courts in the form of legislative prerogative. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). The United States Supreme Court, upholding a state child labor law in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), recognized the parens patriae power when it stated that [HN8] although the “custody, care, and nurture of the child reside first in the parents, . . . the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.” Id. at 166, 64 S.Ct. 438 (footnotes omitted).

In decisions over the past three decades, this Court has expressly relied on the state’s parens patriae authority to protect children in two areas: (1) juvenile delinquency [*11] and dependency, see P.W.G. v. State, 702 So.2d 488, 491 (Fla.1997); State v. D.H., 340 So. 2d 1163, 1166 (Fla.1976); In re Camm, 294 So.2d 318, 320 (Fla.1974); and (2) child custody and support. See Schutz v. Schutz, 581 So.2d 1290, 1293 (Fla.1991); Lamm v. Chapman, 413 So.2d 749, 753 (Fla.1982); Kern v. Kern, 333 So.2d 17, 19 (Fla.1976). Pervasive statutory schemes cover each of these areas. See generally ch. 39, Fla. Stat. (2004) (“Proceedings Relating to Children”); ch. 61, Fla. Stat. (2004) (“Dissolution of Marriage; Support; Custody”); ch. 984, Fla. Stat. (2004) (“Children and Families in Need of Services”); ch. 985, Fla. Stat. (2004) (“Delinquency; Interstate Compact on Juveniles”).

Although there is no statutory scheme governing pre-injury releases, the Kirtons argue that a parent’s execution of a pre-injury release falls squarely within the parent’s authority to settle pursuant to section 744.301(2), Florida Statutes (2007). This statutory provision allows a parent, acting as the natural guardian of a minor child, to settle the child’s claim for amounts up to $ 15,000. The Kirtons reason that because at the time a parent signs a pre-injury release, the claim is worth less than [*12] $ 15,000, the parent’s authority to execute a pre-injury release for a minor child falls within this section. Contrary to the Kirtons’ assertion, a parent’s authority to execute a pre-injury release on behalf of a minor child does not fall within the purview of section 744.301(2). Section 744.301, Florida Statutes (2007), applies to situations where a minor child already has a cause of action against another party. A pre-injury release is executed before any cause of action accrues and extinguishes any possible cause of action.

The absence of a statute governing parental pre-injury releases demonstrates that the Legislature has not precluded the enforcement of such releases on behalf of a minor child. See Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 400 (Fla. 2005) (noting that the absence of a statutory scheme governing a parent’s agreement to binding arbitration on behalf of a minor child demonstrates that the Legislature has not precluded the enforcement of such agreements). However, we find that public policy concerns cannot allow parents to execute pre-injury releases on behalf of minor children.

Florida Courts

Although this is an issue of first impression for this Court, the [*13] district courts of Florida have addressed this matter, but their decisions have not been consistent. In Lantz v. Iron Horse Saloon, Inc., 717 So. 2d 590 (Fla. 5th DCA 1998), the minor child’s natural guardian filed suit against Iron Horse Saloon after the child was injured while operating a “pocket bike” on the Iron Horse premises. Id. at 591. The trial court granted Iron Horse’s motion to dismiss the complaint based on the pre-injury release executed by the minor child’s guardian. On appeal, the Fifth District affirmed the trial court’s order granting the motion, finding that the release was sufficient to bar the child’s claim. Id. at 591-92. However, the Fifth District’s decision was based on the finding that the release clearly and unequivocally relieved Iron Horse from liability. The district court did not focus on whether the guardian had authority to execute the pre-injury release on behalf of the minor. Id.

In Gonzalez v. City of Coral Gables, 871 So. 2d 1067 (Fla. 3d DCA 2004), the mother signed a pre-injury release so that the minor child could participate in the Coral Gables Fire Rescue Explorer Program. After the child was injured, the mother filed suit and the trial court [*14] entered summary judgment in favor of the city based on the release the mother had signed. The Third District affirmed and found that the release barred the mother’s claim on behalf of the minor child. Id. at 1067-68. The district court relied on a distinction the Fourth District made in Shea v. Global Travel Marketing, Inc., 870 So. 2d 20, 24 (Fla. 4th DCA 2003), quashed, 908 So. 2d 392 (Fla. 2005), between community and school-supported activities and commercial activities. The Third District found that because the explorer program was a community-supported activity, the release was enforceable. Gonzalez, 871 So. 2d at 1067. 5 The Third District similarly found a parent’s execution of a pre-injury release on behalf of a minor child, for participation on the high school cheerleading squad, enforceable. See Krathen v. School Bd. of Monroe Cty., 972 So. 2d 887 (Fla. 3d DCA 2007). In Krathen, the Third District again discussed the Fourth District’s distinction in Shea between school-supported activities and commercial activities. Id. at 889. However, the Third District’s decision ultimately relied on this Court’s finding in Shea that “parents have the authority to make the decision whether [*15] to waive a child’s litigation rights in exchange for participation in an activity the parent feels is beneficial for the child.” Id. at 889 (citing Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 404 (Fla. 2005)).

5 This Court in Shea found such a distinction arbitrary as applied to parents’ agreements to arbitrate but, in doing so, noted that it would not address this distinction as applied to pre-injury releases. Shea, 908 So. 2d at 403-04 & n.9.

On the other hand, in Applegate v. Cable Water Ski, L.C., 974 So. 2d 1112 (Fla. 5th DCA 2008), a case decided after Lantz, the Fifth District aligned itself with the Fourth District in the instant case and held that pre-injury releases are unenforceable as against public policy. Applegate involved a minor child who was injured while wakeboarding at a camp. In finding the parent’s execution of the pre-injury release unenforceable, the district court emphasized that its decision was limited to commercial enterprises because “[t]hey can insure against the risk of loss and include these costs in the price of participation.” Id. at 1115.

In Global Travel Marketing, Inc. v. Shea, the father brought a wrongful death action against a safari operator [*16] for the death of his son who was mauled by hyenas while on the safari. 908 So. 2d at 395. Before the safari, the child’s mother signed a travel contract on behalf of herself and her son, which included a release of liability and an arbitration agreement provision. Based on the travel contract, Global Travel moved to stay the proceedings and compel arbitration of the father’s claim, which the trial court granted. Id. On appeal, the Fourth District reversed and found the arbitration clause unenforceable as to the child based on public policy grounds. Id. at 396. However, this Court quashed the Fourth District’s decision and found the arbitration agreement enforceable against the minor or minor’s estate in a tort action arising from the contract. 6 In doing so, this Court reasoned that if the courts required parents to seek court approval before entering into travel contracts that included arbitration agreements, courts would be second guessing a fit parent’s decision. Id. at 404. The Court emphasized that parents who decide which activities their children can participate in may also decide on behalf of their children “to arbitrate a resulting tort claim if the risks of these activities [*17] are realized.” Id.

6 This Court noted at the beginning of its decision that the issue, as phrased by the Fourth District, only touched “upon binding arbitration and not on any broader contractual waiver of a tort claim brought on behalf of a minor.” Id. at 394. It also distinguished pre-injury releases from arbitration agreements: “Whether a parent may waive his or her child’s substantive rights is a different question from whether a parent may agree that any dispute arising from the contract may be arbitrated rather than decided in a court of law.” Id. at 401. We emphasized this distinction by noting that the nature of the waiver, whether it concerns a waiver of a legal claim or right or a waiver of the forum in which the claim is presented, “is a crucial consideration in determining whether the state’s interest in protecting children renders the waiver unenforceable.” Id. at 403.

A federal district court in Florida in two separate cases also found that pre-injury releases signed by parents on behalf of their minor children were invalid. See In re Royal Caribbean Cruises Ltd., 459 F. Supp. 2d 1275 (S.D. Fla. 2006); In re Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d 1168 (S.D. Fla. 2005) [*18] (where both the father and minor child were injured on a jet ski that was owned by Royal Caribbean on the island of Coco Cay, Bahamas). In both cases, the federal district court reviewed out-of-state precedent and found that in cases involving school-sponsored or community-run activities the courts upheld pre-injury releases, and in cases involving commercial activities the courts have found the releases unenforceable. In re Caribbean Cruises Ltd., 459 F. Supp. 2d at 1280; In re Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d at 1172.

Out-of-State Precedent

Other states and federal courts have also addressed the propriety of a parent or guardian’s execution of a pre-injury release on behalf of a minor child. In holding that pre-injury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions. See, e.g., Johnson v. New River Scenic Whitewater Tours, Inc., 313 F. Supp. 2d 621 (S.D.W.Va. 2004) (finding a parent could not waive liability on behalf of a minor child and also could not indemnify a third party against the parent’s minor child for liability for conduct that [*19] violated a safety statute such as the Whitewater Responsibility Act); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 199 Ill. Dec. 572 (Ill. App. Ct. 1994) (finding a parental pre-injury waiver unenforceable in a situation where the minor child was injured after falling off a horse at a horseback riding school); Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 n.3 (Me. 1979) (stating in dicta that a parent cannot release a child’s cause of action); Smith v. YMCA of Benton Harbor/St. Joseph, 216 Mich. App. 552, 550 N.W.2d 262, 263 (Mich. Ct. App. 1996) (“It is well settled in Michigan that, as a general rule, a parent has no authority, merely by virtue of being a parent, to waive, release, or compromise claims by or against the parent’s child.”); Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 381, 383 (N.J. 2006) (finding that where a child was injured while skateboarding at a skate park facility, “a parent may not bind a minor child to a pre-injury release of a minor’s prospective tort claims resulting from the minor’s use of a commercial recreational facility”); Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) (extending the law that a parent could not execute a pre-injury release on behalf of a minor child to a mentally [*20] handicapped twenty-year-old student who was injured while training for the Special Olympics at a YMCA swimming pool); Munoz v. II Jaz, Inc., 863 S.W.2d 207 (Tex. App. 1993) (finding that giving parents the power to waive a child’s cause of action for personal injuries is against public policy to protect the interests of children); Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (Utah 2001) (concluding that “a parent does not have the authority to release a child’s claims before an injury,” where the child was injured as a result of falling off a horse provided by a commercial business); Hiett v. Lake Barcroft Cmty. Ass’n., 244 Va. 191, 418 S.E.2d 894, 8 Va. Law Rep. 3381 (Va. 1992) (concluding that public policy prohibits the use of pre-injury waivers of liability for personal injury due to future acts of negligence, whether for minor children or adults); Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (Wash. 1992) (holding that the enforcement of an exculpatory agreement signed by a parent on behalf of a minor child participating in a ski school is contrary to public policy).

Although there are jurisdictions where pre-injury releases executed by parents on behalf of minor children have been found enforceable, we note that the only [*21] published decisions where they have been upheld involved a minor’s participation in school-run or community-sponsored activities. See, e.g., Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Cal. Ct. App. 1990) (finding the pre-injury release executed by the father on behalf of the minor child enforceable against any claims resulting from the child’s participation in a school-sponsored event); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (Mass. 2002) (holding that a parent has the authority to bind a minor child to a waiver of liability as a condition of a child’s participation in public school extracurricular sports activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 205 (Ohio 1998) (concluding that a parent may bind a minor child to a release of volunteers and sponsors of a nonprofit sports activity from liability for negligence because the threat of liability would strongly deter “many individuals from volunteering for nonprofit organizations” because of the potential for substantial damage awards).

While this particular case involves a commercial activity, we note that these jurisdictions that have upheld pre-injury releases have done so because community-run and [*22] school-sponsored type activities involve different policy considerations than those associated with commercial activities. As the Ohio Supreme Court explained in Zivich, in community and volunteer-run activities, the providers cannot afford to carry liability insurance because “volunteers offer their services without receiving any financial return.” 696 N.E.2d at 205. If pre-injury releases were invalidated, these volunteers would be faced with the threat of lawsuits and the potential for substantial damage awards, which could lead volunteers to decide that the risk is not worth the effort.

This Case

The trial court in this case specifically relied on the case law that has upheld the enforceability of the pre-injury release executed by the father on behalf of the deceased minor child in granting a motion for summary judgment in favor of the Kirtons. In reversing the trial court’s order, the Fourth District first acknowledged that as part of the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution, parents have a right to determine what activities may be appropriate for [*23] the minor child’s participation. However, the district court determined that the “decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child.” Fields, 961 So. 2d at 1129. We agree.

Although parents undoubtedly have a fundamental right to make decisions concerning the care, custody, upbringing, and control of their children, Troxel, 530 U.S. at 67, the question of whether a parent should be allowed to waive a minor child’s future tort claims implicates wider public policy concerns. See Hojnowski, 901 A.2d at 390. While a parent’s decision to allow a minor child to participate in a particular activity is part of the parent’s fundamental right to raise a child, this does not equate with a conclusion that a parent has a fundamental right to execute a pre-injury release of a tortfeasor on behalf of a minor child. It cannot be presumed that a parent who has decided to voluntarily risk a minor child’s physical well-being is acting in the child’s best interest. Furthermore, we find that there is injustice [*24] when a parent agrees to waive the tort claims of a minor child and deprive the child of the right to legal relief when the child is injured as a result of another party’s negligence. When a parent executes such a release and a child is injured, the provider of the activity escapes liability while the parent is left to deal with the financial burden of an injured child. If the parent cannot afford to bear that burden, the parties who suffer are the child, other family members, and the people of the State who will be called on to bear that financial burden. Therefore, when a parent decides to execute a pre-injury release on behalf of a minor child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider. Moreover, [HN9] a “parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” Fields, 961 So. 2d at 1129-30. For this reason, the state must assert its role under parens patriae to protect the interests of the minor children.

[HN10] Business owners owe their patrons a duty of reasonable care and to maintain a safe environment for the activity they provide. See Hojnowski, 901 A.2d at 388. [*25] If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed. Id. Moreover, as a provider of the activity, a commercial business can take precautions to ensure the child’s safety and insure itself when a minor child is injured while participating in the activity. On the other hand, a minor child cannot insure himself or herself against the risks involved in participating in that activity. As the New Jersey Supreme Court stated in Hojnowski:

[HN11] The operator of a commercial recreational enterprise can inspect the premises for unsafe conditions, train his or her employees with regard to the facility’s proper operation, and regulate the types of activities permitted to occur. Such an operator also can obtain insurance and spread the costs of insurance among its customers. Children, on the other hand, are not in a position to discover hazardous conditions or insure against risks. Moreover, the expectation that a commercial facility will be reasonably safe to do that which is within the scope of the invitation, is especially important where the facility’s patrons are minor children. [*26] If we were to permit waivers of liability, we would remove a significant incentive for operators of commercial enterprises that attract children to take reasonable precautions to protect their safety.

Id. (citations omitted).

Based on these public policy concerns, it is clear that the pre-injury release executed by Bobby Jones on behalf of his now deceased son was unenforceable because it prevented the minor’s estate from bringing a cause of action against the commercial establishment that provided the activity which resulted in the minor’s death.

CONCLUSION

For the reasons set forth above, we hold that a pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity. Accordingly, we answer the certified question in the negative, approve the decision of the Fourth District, disapprove the Fifth District’s decision in Lantz, and remand for proceedings consistent with this opinion.

It is so ordered.

ANSTEAD, PARIENTE, and LEWIS, JJ., concur.

ANSTEAD, J., specially concurs with an opinion.

PARIENTE, J., concurs with an opinion.

WELLS, J., dissents [*27] with an opinion.

CANADY and POLSTON, JJ., did not participate.

CONCUR BY: ANSTEAD; PARIENTE

CONCUR

ANSTEAD, J., specially concurring.

I concur in the majority opinion and write separately to emphasize that our holding is narrowly directed at those commercial operators who wrongfully and negligently cause injury to a child but seek to be relieved of liability for their misconduct by securing a pre-activity release from the child’s parent. Of course, under today’s holding commercial operators who properly conduct their operations and cannot be demonstrated to have acted negligently will continue to be free of liability. On the other hand, Florida’s children and parents need not worry, after today’s decision, that careless commercial operators may be immunized from their carelessness by the presence of an exculpatory clause in a ticket for admission.

Finally, I also find the articulation of the policy considerations supporting today’s decision set out in Judge Torpy’s opinion for the Fifth District in Applegate to be particularly instructive and persuasive:

Exculpatory contracts are, by public policy, disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of [*28] injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Cain v. Banka, 932 So. 2d 575, 578 (Fla. 5th DCA 2006). Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy. Id.; Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973); Restatement (Second) of Torts § 496B.

Appellants concede that the contract at issue here is unambiguous but urge that the general rule should give way to an overriding public policy of protecting children from damages caused by negligently imposed injuries. This argument finds considerable support in the decisional law across the country. We are persuaded by some of the reasoning advanced by these authorities and also offer our own rationale for our holding.

Indisputably, Florida’s public policy manifests a strong intent to protect children from harm. As parens patriae, the state’s authority is broader than that of a parent’s and may be invoked to limit parental authority when necessary to protect children. Global Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 399 (Fla. 2005). [*29] The expression of that policy most relevant here is the legislative limitation on parental authority to settle post-injury claims contained in section 744.301(2), Florida Statutes (2007). By requiring judicial approval of settlements over $ 15,000, the legislature has manifested a policy of protecting children from parental imprudence in the compromise of their claims for injury. Because parents’ legal duty to support their children ends at or near the age of majority, the potential societal burden of an imprudent settlement justifies judicial oversight of the settlement contract.

The case of a pre-injury exculpatory clause may be distinguished from a post-injury settlement in one respect. In a pre-injury situation, there is no risk that financial pressure will induce parental imprudence. Instead, the parents’ motivation is the potential benefit to the child derived from the child’s participation in the activity. Theoretically, the prudent parent can weigh this benefit against the potential consequence of a negligently caused injury and determine whether it is in the child’s best interest to execute an exculpatory clause and permit the activity. Motivations aside, however, the consequence [*30] of an imprudent decision is the same as in the post-injury context: a child will suffer injury for which society might ultimately bear the burden. Thus, the parents’ interest is not necessarily consonant with those of society and the child.

Although this potential societal cost is arguably a justification to invalidate all pre-injury exculpatory clauses, we discern significant reasons for a distinction when a child is the subject. A consenting adult has the ability to avoid potential injury by exercising personal caution and mitigate the impact of future economic loss by purchasing disability and health insurance policies. Conversely, children tend to throw caution to the wind during risky activities, resulting in a decreased chance of avoiding injury caused by the negligence of others. More importantly, children have no ability to indemnify themselves for future economic losses like their adult counterparts, making them especially vulnerable after the parents’ support obligation ends. As parens patriae, the state also has an interest in protecting children from the non-economic consequences of negligently-caused injury. A policy that enforces exculpatory clauses fosters an increased [*31] risk of injury through carelessness. For these reasons, although the scales of public policy might tip in favor of the enforcement of exculpatory contracts involving consenting adults, we think they tip the other way when children are the subject.

We emphasize that our holding is limited to commercial enterprises. They can insure against the risk of loss and include these costs in the price of participation.

Applegate, 974 So. 2d at 1114-15 (footnote and citation omitted).

PARIENTE, J., concurring.

I fully concur with the majority’s conclusion that the pre-injury release signed by the father on behalf of his fourteen-year-old son, executed in order to “gain entry to the facility and be allowed to participate in riding the ATV in the Thunder Cross Motor Sports Park,” is invalid. The owners and operators of the sports park, the Kirtons, raised the execution of this release as a complete defense to the wrongful death action brought on behalf of the estate.

I write to emphasize several points. First, as pointed out by the Fourth District, “[t]here is no basis in common law for a parent to enter into a compromise or settlement of a child’s claim, or to waive substantive rights of the child without [*32] court approval.” Fields, 961 So. 2d at 1130.

Second, the release in this case was all-encompassing, as it covered not just injuries occurring as a result of the activity of ATV riding, which itself could be considered inherently dangerous, but all negligent acts. The allegations of the complaint in this case, which we must accept as true, asserted in pertinent part that the ATV fourteen-year-old Christopher Jones was “racing and jumping” on “the course set up and maintained by Defendants” was recommended “only for use by those over the age of 16” by the manufacturer. Significantly, the allegations also asserted that “the subject four wheel all terrain vehicle was not designed by the manufacturer or recommended for racing or jumping on a course such as the course constructed and maintained by Defendants and/or Defendants’ agents and employees.”

Moreover, the amended complaint alleged that the Kirtons had prior knowledge of Christopher Jones’s limited experience based on a serious injury he sustained on the same course with the same ATV approximately one month before:

Defendants and/or their agents and employees knew or should have known that a fourteen year old with limited experience [*33] as a rider, such as CHRISTOPHER JONES, should not have been permitted to operate the subject 350 cc four wheel all terrain vehicle in the manner it was being operated by him on the course constructed and maintained by THUNDER CROSS MOTOR SPORTS PARK on May 10, 2003. This is particularly the case given the fact that the last time CHRISTOPHER JONES operated the subject 350 cc four wheel all terrain vehicle he operated it in the same manner and “missed the jump” while riding on the identical course constructed and maintained by THUNDER CROSS MOTOR SPORTS PARK on April 6, 2003. On that date he was seriously injured such that he was removed from the Defendant’s property by Fire Rescue personnel and was transported to the hospital for treatment.

The amended complaint further alleged that the negligent design of the course and the failure to have a “flag man” to alert riders to the dangers of the course and to prevent the fatal injuries directly caused or substantially contributed to the death of Christopher Jones. As explained in the amended complaint:

On May 10, 2003 while attempting to jump on Defendants’ course which was negligently constructed and/or maintained by Defendants through their [*34] agents and their employees, CHRISTOPHER JONES “missed the jump” so that he came up short and did not clear the jump. The front tires of the four wheel all terrain vehicle he was operating hit the ground first and CHRISTOPHER JONES bounced over the handlebars, flipped off the four-wheeler to the right and the four-wheeler went to the left and then came back directly at him.

Although there was supposed to be a flag man stationed at the jump to alert riders of dangers on the course and to assist in rendering assistance to injured riders such as CHRISTOPHER JONES, there was no flag man stationed at the jump that CHRISTOPHER JONES was attempting to navigate when the accident occurred on May 10, 2003. Because the four-wheeler came back at CHRISTOPHER JONES after he was thrown off the vehicle, had a flag man been close enough to the jump, he would have been able to remove CHRISTOPHER JONES from harm’s way before the vehicle hit and killed him.

In distinguishing between risks inherent in the activity and separate acts of negligence, the Fourth District explained:

The decision to absolve the provider of an activity from liability for any form of negligence (regardless of the inherent risk or danger [*35] in the activity) goes beyond the scope of determining which activity a person feels is appropriate for their child. The decision to allow a minor to participate in an activity is properly left to the parents or natural guardian. For instance, the decision to allow one’s child to engage in scuba diving or sky diving involves the acceptance of certain risks inherent in the activity. This does not contemplate that a dive instructor will permit or encourage diving at depths beyond safe recreational limits, or that the pilot of the plane on a sky diving venture is intoxicated or otherwise impaired, both situations which could cause injury to the minor.

Id. at 1129. I agree with this distinction. Although the father accepted the risks inherent in ATV riding by allowing his son to participate in the activity, his acceptance did not contemplate that the defendants would act negligently as described in the amended complaint.

Finally, I write to emphasize that this Court limits its decision to activities provided by commercial establishments because those were the facts presented by this case. However, I do not agree with the reasoning of those cases cited by the majority that have found that [*36] all releases from liability for noncommercial activities are automatically valid. To me there is an important distinction between a release to allow a child to participate in school activities, such as cheerleading or football, which could be considered inherently dangerous, and a blanket release that absolves the sponsor of liability from all negligent acts. As with commercial activities, when a parent allows his or her child to participate in an inherently dangerous noncommercial activity, his or her acceptance does not contemplate that the activity provider will act negligently.

DISSENT BY: WELLS

DISSENT

WELLS, J., dissenting.

While I agree that it would be a good policy to limit parental pre-injury releases of minors’ claims for injuries or death arising out of dangerous activities operated by commercial entities, until today this Court has never held that such a pre-injury release knowingly executed by a parent is unenforceable. Nor until this case was decided by the Fourth District Court of Appeal, had a district court of appeal held such a pre-injury release unenforceable. Furthermore, when the parent in this case signed such a release, the Legislature had not prohibited or regulated pre-injury parental [*37] releases of a minor’s claims, though the Legislature had legislated as to post-injury parental releases of a minor’s claims. See §§ 744.301, 744.387, Fla. Stat. (2003). The Legislature has not subsequently acted to regulate pre-injury releases. Thus, at the time of this parental agreement which permitted the minor to participate in this activity, there was no law in Florida, either statutory or court-declared, enunciating the public policy that the majority now determines makes this agreement unenforceable. Absent the majority’s decision that such an agreement is against public policy, the agreement would without question be enforceable. See Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4th DCA 1973) (explaining that exculpatory clauses are generally valid and enforceable absent public policy requiring nonenforcement). I believe that it is fundamentally unfair to now declare a new public policy and then apply it to the defendants in this case.

Moreover, I conclude that the majority opinion highlights why the decision as to the enforceability of a parent’s pre-injury release of a minor’s claim is and should be a legislative decision. The majority opinion creates many questions [*38] and provides few answers. The answers will have to be gleaned from further costly case-by-case litigation, and if the particular circumstances of other releases are found to be against the declared public policy, the result will be additional after-the-fact determinations of liability without sufficient notice to the parties involved.

The majority opinion draws a distinction between “commercial establishments” and “community based or school activities,” which is precisely the distinction that this Court’s majority criticized in quashing the Fourth District Court of Appeal’s decision in Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005). The Court expressly stated:

[T]he line dividing commonplace activities from commercial travel opportunities is far from clear, given that some commonplace school or community activities might also involve commercial travel. The Fourth District decision might prevent arbitration of claims of minors arising from their parents’ decisions in individually authorizing activities that involve commercial travel, but not from the decisions of school authorities in arranging for the same activity.

We see no basis in fact or law for this distinction, [*39] nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed appropriate for the child to engage in. Moreover, the alternative of requiring parents to seek court approval before entering into commercial travel contracts that include arbitration agreements would place courts in a position of second guessing the decision-making of a fit parent.

Id. at 404 (footnote omitted). In reaching our decision, we relied upon and quoted from Troxel v. Granville, 530 U.S. 57, 68-69, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (“Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”).

I recognize that in Shea the majority said in a footnote that it was not addressing the distinction between commercial and community-based and school-related activities as applied to pre-injury waivers of liability. See 908 So. 2d at 395 n.3. However, in this case, the majority does not have any more of a reasonable “basis in law [*40] or fact for this distinction, nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed appropriate for the child to engage in” than the majority had in Shea. As found in Shea, the line dividing commercial activities from community-based and school-related activities is far from clear. For example, is a Boy Scout or Girl Scout, YMCA, or church camp a commercial establishment or a community-based activity? Is a band trip to participate in the Macy’s Thanksgiving Day parade a school or commercial activity? What definition of commercial is to be applied?

The importance of this issue cannot be overstated because it affects so many youth activities and involves so much monetary exposure. Bands, cheerleading squads, sports teams, church choirs, and other groups that often charge for their activities and performances will not know whether they are a commercial activity because of the fees and ticket sales. How can these groups carry on their activities that are so needed by youth if the groups face exposure to large damage claims either by paying defense costs or damages? Insuring against such claims is not a realistic [*41] answer for many activity providers because insurance costs deplete already very scarce resources. The majority’s decision seems just as likely to force small-scale activity providers out of business as it is to encourage such providers to obtain insurance coverage.

If pre-injury releases are to be banned or regulated, it should be done by the Legislature so that a statute can set universally applicable standards and definitions. When the Legislature acts, all are given advance notice before a minor’s participation in an activity as to what is regulated and as to whether a pre-injury release is enforceable. In contrast, the majority’s present opinion will predictably create extensive and expensive litigation attempting to sort out the bounds of commercial activities on a case-by-case basis.

The majority opinion also does not explain the reason why after years of not finding pre-injury releases to be against public policy, it today finds a public policy reason to rule pre-injury releases unenforceable when the Legislature has not done so. Again, the present majority opinion conflicts with the reasoning expressed just three years ago in Shea:

Further, the lack of a statutory requirement [*42] for court involvement in pre-injury arbitration agreements provides a basis for treating these agreements differently from settlements of lawsuits involving minors’ claims, for which appointment of a guardian ad litem and court approval are necessary under certain circumstances pursuant to sections 744.301 and 744.387, Florida Statutes (2004). The Legislature has chosen to authorize court protection of children’s interests as to extant causes of action, but has not exercised its prerogative as parens patriae to prohibit arbitration of those claims.

908 So. 2d at 403. Similarly, though the Legislature has acted in respect to the settlement of accrued claims, the Legislature has not acted in respect to pre-injury releases. There can be no question that the Legislature adopts legislation when it concludes that the interests of minors are best served by statutory protection. The Legislature has chosen to act in respect to many matters in which the Legislature concluded that minors should have the protection of a guardian ad litem. See Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Petersen, 920 So. 2d 75, 78 (Fla. 1st DCA 2006) (listing circumstances in which trial court may or must appoint [*43] a guardian ad litem: § 39.402(8)(c) (shelter hearings); § 39.807(2)(a) (termination of parental rights proceedings); § 73.021(4) (eminent domain proceedings); § 390.01115(4)(a) (termination of pregnancy without parental notification); § 731.303(4) (probate proceedings); § 743.09(3) (contract for artistic or creative services or professional sport contract); § 744.446 (parental conflict of interests with minor child), Florida Statutes (2004)). Thus, as we did in respect to arbitration agreements, it is reasonable to conclude that the Legislature has chosen not to act in respect to pre-injury releases.

The Legislature may have chosen not to act on the issue of pre-injury releases out of respect for the authority of parents to make choices involving their children, which again we recognized in Shea:

Parents’ authority under the Fourteenth Amendment and article I, section 23 [of the Florida Constitution] encompasses decisions on the activities appropriate for their children–whether they be academically or socially focused pursuits, physically rigorous activities such as football, adventure sports such as skiing, horseback riding, or mountain climbing, or, as in this case, an adventure vacation [*44] in a game reserve. Parents who choose to allow their children to engage in these activities may also legitimately elect on their children’s behalf to arbitrate a resulting tort claim if the risks of these activities is realized.

908 So. 2d at 404. Without the ability to execute pre-injury releases, a parent may find that his or her minor child will not be able to participate in activities because the operators of the activities will not accept the financial exposure of the minor’s participation, regardless of whether the parent would decide that the benefit to the minor outweighed the risk of injury.

The majority opinion raises other serious questions. If a parent does not have the authority to execute a pre-injury release, does a parent have the authority to execute an enforceable consent for medical treatment on behalf of a minor child? Florida courts have long recognized the authority of the parent to execute an enforceable consent for medical treatment on behalf of a minor child, see Ritz v. Fla. Patient’s Comp. Fund, 436 So. 2d 987, 989 (Fla. 5th DCA 1983) (holding that parent could consent to medical treatment on behalf of incompetent child), but medical consents and pre-injury [*45] releases have substantial similarities. Plainly, without the giving of consent, health care providers in most instances will not provide medical services. The majority’s decision also calls into question whether a parent has authority to turn down an offer of settlement for an injury to a minor as was upheld in Petersen.

In sum, I conclude that the questions presented by this case demonstrate a need for the Court to exercise judicial restraint, recognize that the Legislature is the policy-making branch of government, and defer to the Legislature by respecting the Legislature’s non-action to date.